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The opinion of the court was delivered by
Johnston, J. :
This is a proceeding in quo warranto, brought in the name of the state by the attorney-general, to test the validity of a school-district organization in Franklin county.
A petition was presented to the county superintendent asking for the formation of a new district out of specified territory contained in districts Nos. 4 and 50. Upon giving legal notice a hearing was had before the county superintendent on January 31, 1898, when the petition was refused, the reasons therefor being stated at length in writing. From this decision an appeal was taken to the board of county commissioners, and on April 30, 1898, and after a full hearing of the parties interested and a conference with the county superintendent, the board denied the appeal and sustained the action of the county superintendent. No further action was taken in the matter until June 25, 1898, when the board, without notice to the parties concerned, granted a rehearing of the appeal. This action was taken upon the petition of one person, but notice of the filing of the same was not served upon the county superintendent, nor on any officer of the school districts affected, nor was any public notice thereof given. Several meetings of the board, regular, special, and called, were held between April 30, when the appeal was denied, and June 25, when a rehearing was granted, but at none of those meetings was any action taken on the matter, and the decision denying the appeal was treated as a finality. On July •2, 1898, the board again considered the matter, and assumed power to reopen the case and sustain the appeal, granting the petition so far as it affected district No. 4, but denying it so far as it affected district No. 50. It appears that after the county superintendent’s decision had been made and an appeal taken, and while the petition was in the office of the county clerk, it was changed so far as to exclude from the proposed new district a part of the territory, including one-half mile of railroad that would have been in the district had the original petition therefor been granted. After the action of the board purporting to create a new district was had, the county superintendent gave notice of its aption and of a meeting to elect officers therein. At that meeting the defendants were elected as district officers, and were assuming to discharge the functions and duties of such officers when the present proceeding was begun. Did the board have power to create a school district when it had taken final action on the appeal two months before, and when the petition and proposition upon which it acted were not the ones considered by the county superintendent, and which formed the basis of the decision from which the appeal was taken?
The power to hear and determine an appeal is exceptional jurisdiction, quite unlike that exercised by the board in the purchase of supplies, the allowance of claims, or the administration of the ordinary business and monetary affairs of the county. The time and manner of taking up and disposing of the current business are largely left to the discretion of the board, and hence little restriction is imposed as to the time and circumstances under which matters may be reconsidered or reheard by it. The power to act as a re-' viewing tribunal, however, is special and limited, and one which must be exercised strictly upon the conditions under which it is given. In the formation and alteration of school districts the board has no original jurisdiction. That belongs alone to the county superintendent. The only function of the board in that regard is to determine whether or not the decision of the county superintendent shall be sustained. It acts in conference with the county superintendent, and only after written notice shall have been given to the county superintendent and the clerks of all the districts affected by the alteration. .(Gen. Stat. 1889, ¶ 5581; Gen. Stat. 1897, ch. 63, § 3.) In such appeals the statute requires promptness and dispatch, and makes early and final action obligatory upon the board and county superintendent. This is manifest by the statutory provision that the appeal shall be heard and decided at the next regular meeting of the board after it is taken, and that the decision then made shall be final.
In this case, when the decision was made on April 30,1898, denying the appeal and sustaining the action of the county superintendent, the parties interested had a right to infer that a final disposition had been made of the matter, and especially after the board adjourned until May 26. Several meetings intervened between the action denying the appeal and the reopening of the case on June 25, but at none of these meetings was any action taken in or reference made to the appeal. It therefore stood and was treated as a finality for a long time, and when action was subsequently taken it was without notice. If a rehearing may be had after the adjournment of the meeting at which, the decision is made, it must be on due notice to the interested parties. Notice was essential to a hearing of an appeal in the first instance, and certainly the controversy cannot be reopened and reheard after what appears to have been a final decision of the case without giving interested parties an opportunity to be heard.
Another objection, and perhaps a more serious one, is that the board heard a different application than the one presented to the county superintendent, and x’eviewed a case that was not heard and decided by that officer. It appears that, after the original application and papers had been filed in the office of the county clerk, the petition as originally filed was changed so as to exclude from the boundaries of 'the proposed district quite an extent of territory, being all of the territory proposed to be taken from district No. 4. It thus appears that the board assumed to exercise original jurisdiction by creating a district which the county superintendent had never been asked to create, and of the proposed formation of which no notices were ever posted. It is contended that the petition is not expressly provided for in the statute, and therefore that the contents of the same are unimportant. No express provision is made for a petition to the county superintendent, but written notice of the proposed change of districts is specifically required, and therefore the statute plainly contemplates that a petition shall be made for the proposed change, and this is the basis of the notice given by the county superintendent. Considerable discretion is vested in the county superintendent in changing the boundaries of districts, but the board has no original jurisdiction in that respect, nor any power except to determine whether or not the action of the county superintendent shall be sustained. No authority is given by which the board may form districts for which no application has been made, nor can it make alterations in the boundaries of districts not considered by or embraced within the decision of the county superintendent. No application had ever been made to the county superintendent for such an alteration as was made, or for a district with the boundaries fixed by the board, and no notice had ever been given of the proposed organization of such a district. The board was, therefore, attempting to exercise original jurisdiction not conferred on them by law, and for the reasons stated their action is null and void. The organization being illegal, the defendants were not entitled to the offices claimed by them, nor to the authority which they assumed to exercise.
A judgment of ouster will go in accordance with the prayer of plaintiff’s petition. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action to quiet the title to a tract of land which was claimed by Maggie Folin, plaintiff below, under a deed executed by Mark Mad-, den on October 14/1895, purporting to convey the land to her, and claimed by the defendant T. J. Madden under a will made two days later, in which the land was bequeathed to him by Mark Madden. Charles Wuester claimed under a lease of the land made by Mark Madden in his lifetime. The trial court, after hearing a great deal of testimony as to the execution and delivery of the deed, and as to the right of Maggie Folin to take and hold the land, found generally in her favor, and gave judgment accordingly.
One of the principal points of contention at the trial was whether there was a valid and effectual delivery of the deed to Maggie Folin, and, although the delivery was upheld by the findings of the trial court, its sufficiency is again challenged on this review. It appears that Mark Madden was the owner of 200 acres of land and some other property in Marshall county. On October 14,1895, he asked his pastor, Father Hurley, to request H. K. Sharpe, an attorney living in the county, to call upon him. When Sharpe called he was informed by Madden that he desired to convey 100 acres of land to his niece, Maggie Folin, who at that time he thought lived in Louisville, Ky., and the remaining 100 acres he desired to convey to his nephew, James O'Toole. Sharpe prepared the deeds in accord anee with his directions, and he executed both of them in the presence of witnesses. He indicated a desire to have the conveyances take effect at once, and directed Sharpe, in whose hands the deeds were left, to have them recorded at once. The deeds were filed for record on October 17, 1895, and Sharpe undertook to notify the grantees of the conveyances that had been made. On October 16, 1895, the will mentioned was made by Mark Madden, in which the deeds were referred to as wills, and it contained a provision devising all of the land to his nephew,» T. J. Madden. On October 27, 1895, Mark Madden died without having made any other or further disposition of his property.
It appears that when the conveyance was made to Maggie Folin, Mark Madden had never seen her, and although he thought she was in this country she was in fact in Ireland, and remained there for several ■months afterward. She was a native of Ireland who came to this country in 1891 and remained here until May, 1895, when, learning that her mother was sick, she returned to Ireland to take care of her. After her mother died, in September, 1895, she left Ireland and returned to this country. While she was in correspondence with her uncle, Mark Madden, she never met him, and never learned of the conveyance of the land to her until some time after his death. Sharpe notified her of the conveyance and exercised control over the land until she arrived and took actual possession of the same. It thus appears that the deed in question was executed and placed in the hands of Sharpe before the will was made, and if it was completed as to delivery and acceptance it would seem to be sufficient to convey title. It is in due form, and there is no claim of undue influence being exercised upon the grantor to obtain the conveyance, or that he was in any way incapacitated to make it. Tlie testimony tends to show that at the time of the conveyance he desired and intended to vest title in his niece, and it would seem that he accomplished his purpose unless there was in fact no delivery or the grantee was incapable of taking the title.
Much stress is placed on the fact that the deed was not placed in the hands of Maggie Folin until after the death of Madden, and also that she had no knowledge of the gift or conveyance during his lifetime. It is argued that the acceptance by the grantee is essential to a complete delivery, that there was no actual acceptance by her, and that unless the conveyance was complete in the lifetime of the grantor no title could pass to her. Before a deed can operate as a valid transfer of title there must be a delivery of the instrument, and it must be effected during the life of the grantor. It is not essential, however, for the grantor to deliver the instrument to the grantee in person. An unconditional delivery to a third person for the use and benefit of the grantee, where the grantor intends to divest the title and to part with all control over the instrument, is ordinarily a sufficient delivery. What constitutes a sufficient delivery" is largely a matter of intention, and the usual test is, Did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed, and thereby divest himself of title? When the deed has passed beyond the control of the grantor, and he has placed it in the hands of a third person with a'declared or manifest purpose to make a present transfer of the title, a formal acceptance by the grantee is not required. Where the grant is clearly beneficial to the ‘grantee, his acceptance of it is to be presumed in the absence of proof to the contrary, and it has been held that this presumption is not overcome by anything short of the actual dissent of the grantee. (Lessee of Mitchell v. Ryan, 3 Ohio St. 386; 1 Devlin, Deeds, 287; 9 A. & E. Encycl. of L., 2d ed., 162, and cases cited.)
The general finding of the court requires us to indulge every inference favorable to the grantee which may be drawn from the testimony. In the light of that finding, it must be held that when the deed was placed in Sharpe’s hands it was done with the intention that it take effect at once, and that the grantor then parted with all dominion and control over it. Sharpe only acted as a scrivener and custodian, and was not the agent of the grantor in the sense that his possession of the deed was the grantor’s possession. In addition to the expressed purpose of placing the title to the land in his niece, the grantor directed Sharpe to place the deed on record. Although not of itself a delivery, it strongly tends to show the purpose of the grantor not only to surrender control and dominion' of the deed, but also to make a present and complete transfer of title to the grantee. As the case stands, we have a deed of gift clearly beneficial to the grantee placed by the grantor in the hands of a stranger for the benefit of the grantee, the grantor having parted with all control over the deed, and who by his words and acts when the deed was delivered to the stranger clearly indicated a purpose to transfer the title to the grantee at once ; and when the grantee subsequently learned of the conveyance she accepted the deed and claims under it. In such a case the delivery is deemed to be complete and the acceptance to take effect from the original delivery to the third person for the use of the grantee.
It is next contended that the deed was inoperative and void because Maggie Folin was incapable of- acquiring title to any real estate in Kansas by purchase or otherwise. It is contended that she was.an alien in every sense, a non-resident of the state and of the United States, and that by virtué of the provisions of chapter 3, Laws of 1891 (Gen. Stat. 1897, ch.. 51)-, she is precluded from taking by purchase, gift--,or otherwise any of the land owned by Mark Madden iri his lifetime. It is conceded that Maggie Folin was of foreign birth and not naturalized when the deed was executed, but under the testimony and the finding'o.f the court it must be held that she has been a resident of the United States' since 1891, with the fixed purpose' of making this country her permanent home-. She is therefore to be regarded as a resident alien, and it appears that she has undertaken to. comply with the statutes in regard to the taking and holding of property by resident aliens.
It will be observed that section 17 of the -bill of rights, as amended in 1888, does not prohibit the-taking or holding of lands by aliens, but only provides that their rights in that respect be regulated by law.The act of 1891 undertakes to regulate the rightá of aliens in reference to the .purchase, enjoyment or descent of real property in Kansas. An examination o,f the entire provisions of. the act makes it clear that the-phrase “ non-resident-alien ” used therein has reference to aliens residing beyond the limits of the United States. Sections 3 and 4 of the act provide that resident aliens may take and hold lands in Kansas for at-least a period of six years, provided that they, during: that time, conform to the requirements of the 'act.. An alien resident may, by declaring his intention to> become a citizen of the United States according to the* naturalization laws, take and hold lands for a period! of six years, and an alien female who in good faith has become an actual resident of the United States may take and hold land for a period of six years, and may sell, assign, mortgage or dispose of the same in any manner in which she might do if she were a natural-born citizen of the United States. In case of a male person, it is provided that at the time of acquiring the lands he shall cause a certified copy of his intention to'become a citizen of the United States to be filed in the office of the register of deeds, and in case of a female her affidavit that she is in good faith an actual resident of the United States shall be so .filed. It is provided that if these provisions be not complied with within six years by the alien holders of real estate it shall revert to, escheat and become the property of the state of Kansas, and provision is made for the manner in which the forfeiture may be accomplished.
In our view the law contemplates that alien residents may take a defeasible title in lands and hold the .same for a period of six years, and if compliance be made with the requirements mentioned they will acquire an indefeasible title which will be good even :against the state of Kansas. Many of the courts hold under similar statutes that the title acquired by an alien cannot be questioned by any one except the state, and can be divested only by a 'proceeding brought in behalf of the state for that purpose. This question, however, we need not decide at this time, as it appears that Maggie Folin has made the required affidavit within the prescribed time, and therefore, under sections 3 and 4 of the act, has perfected her title and made it good as against an attack by the state or any other party. On October 15, 1896, she made and filed an affidavit stating that she was in good faith an actual resident of the United States, and had been such resident for more than five years last past, and that during the year 1895 she went to Ireland and was temporarily absent on account of the sickness of her mother, who resided in Ireland, but that she was at that time a bona fide resident of Marshall county, Kansas, and lived on the land in question. The filing of the affidavit under the statute is a. condition subsequent, the performance of which give» her an indefeasible title, and the affidavit referred to' appears to meet the requirements of the law. We therefore feel bound to hold that the defendant in error has acquired a good title to the land and was entitled to have the same quieted against both of the plaintiffs in error.
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The opinion of the court was delivered by
Doster, O. J. :
This was an action to recover a personal judgment and to foreclose a mortgage upon real estate brought by Patrick Farrell, the defendant in error, against W. P. Douthitt and others, the plaintiffs in error. The sole defense to the action was the five-years’ statute of limitation. The findings and verdict of the jury and the judgment of the court were in favor of the plaintiff. The defendants prosecute error to this court. The note upon which suit was brought reads as follows :
“$5554.40. „ Topeka, Kan., April 5, 1889.
“On or before five years after date, I promise to pay to the order of Patrick Farrell the sum of $5554.40, with interest payable semiannually at the rate of eight per cent, per annum, until paid.
“Value received. William P. Douthitt.”
The mortgage contains the following stipulation :
“But if said sum of money, or any part thereof, or any interest thereon, is hot paid when the same is due, and if the taxes and assessments of every nature which are or may be assessed and levied against said premises, or any part thereof, are not paid when the same are by law made due and payable, then the whole of said sum or sums, and the interest thereon, shall and by these presents become due and payable, and said party of the second part shall be entitled to the possession of said premises.”
Default was made in the payment of taxes upon the mortgaged premises for 1889, 1890, and 1891. Default in the payment of the first and all the succeeding instalments of interest was likewise made. These two defaults started the statute of limitations to running in favor of the mortgage debtors, within the decision of this court in National Bank v. Peck, 8 Kan. 660. In 1892 payment of the overdue taxes was made by the debtor, W. P. Douthitt. No payment was ever made on the mortgage indebtedness, unless one of twenty-five dollars for legal services performed for the plaintiff, the defendant in error here, by W. P. Douthitt, who was an attorney, should be regarded as such, a credit for that amount for such services having been allowed to him by the mortgagee.. The performance of these services and the rightful allowance of this credit were denied by the mortgage debtors. The jury, however, upon these matters found in favor of the defendant in error, the plaintiff below; and it also found that the defaulted taxes were paid in 1892, as before stated.
Several claims of error are made and strenuously insisted upon. However, none of them can avail to reverse the judgment below if the payment of the delinquent taxes in 1892 operated to correct the default of the debtors, and therefore to end the running of the statutory period of limitation. It will be observed that the occurrence of the defaults, which by the terms of the mortgage precipitated the maturity of the indebtedness and thereby started the statute of limitations to running, are stated in the conjunctive, not the disjunctive. It required the non-payment of both the taxes on the land and interest upon the obligation to mature the indebtedness in advance of the time limited in the note. (Lewis v. Lewis, 58 Kan. 563, 50 Pac. 454.) The court, among other things, instructed the jury as follows :
“ If you find from the evidence in this case that this note and mortgage had become due by reason of the failure of the defendant Douthitt to pay interest upon this indebtedness and taxes upon this land, and if you farther find that in 1892 defendant Douthitt paid the taxes — all the taxes — due upon the land, and at that time no suit had been brought by plaintiff for the purpose of recovering upon this indebtedness, then and in that event I instruct you that would take this case out of the statute of limitations, and that the plaintiff would have five years thereafter within which to m aintain this action. ’ ’
The giving of this instruction and the finding of the jury as to the payment of the defaulted taxes raises the singlé meritorious question in the case. We have no doubt but that the voluntary payment of the taxes by the debtor was a waiver by him of the conditions under which the statute of limitations was running in his favor and was a restoration by him of the plaintiff to the status of a holder of an unmatured indebtedness. This very question was before the supreme court of Iowa in the case of Smalley v. Renken, 85 Iowa, 612, 52 N. W. 507. In that case the court said :
“The condition of the mortgage, that all taxes should be paid within thirty days from the time they became due and payable, is a ground upon which it is sought to declare the note due and sustain the action. The default in this respect was not made a basis for the action at its commencement, but was so made by an amendment filed January 6, 1890. The taxes were paid August 27, 1889. The appellee urges this point because it is within the letter of the contract. Courts look at the intent of the parties in making the contract. The suit cannot be regarded as commenced as to this particular default until the filing of the amendment to the petition, January 6, 1890. At that time the taxes were paid. What did the parties stipulate that the taxes should be paid by defendant for? To protect the plaintiff from the loss or impairment of his security. At the filing of the amendment every right of the plaintiff in this respect was fully protected. The object of the conditions of the mortgage was to enable the plaintiff to treat the debt as due, and save himself from loss because of- the default. After the payment of the taxes all such liability for loss was at an end. His situation was exactly as if there' had been no default as far as the conditions for forfeiture were concerned. To justify a forfeiture under such circumstances would work an injustice that the court ought not to permit. We think the payment of the taxes, after a breach of the conditions for their payment, and in a way that no prejudice could result because of the default, and before suit brought to declare the debt due because of the default in payment, is a bar to such a proceeding.”
We quite well understand the rule to be that the running of the statute of limitations will not ordinarily be suspended by the occurrence of other events, but this cannot be true where the party in whose favor the statute is running voluntarily does an act waiving or renouncing his rights thereunder. Like all other mere personal privileges, the right to plead the statute of limitations may by waived. (1 Wood, Lim. [2d ed.] § 41.) After the payment of the taxes for 1892 they became delinquent for the succeeding years. Thereafter, within the statutory period, the foreclosure actioh was brought.
The board of county commissioners was made a party defendant in respect of the interest it possessed in the tax lien upon the mortgaged premises, and it filed an answer setting up the amounts of all the 'taxes. The defendants Douthitt in their pleadings did not challenge the validity of any of these taxes except those levied for school purposes, and upon the trial of the case these school taxes only were contested. The levy of these taxes was found by the court to be void and the land adjudged to be discharged from their lien. The defendant W. P. Douthitt upon the trial of the case admitted that the validity of the taxes other than those levied for school purposes was not controverted by him, and the court thereupon adjudged them to be a first lien upon the land, and ordered that they be first paid out of the proceeds of the sale of the'land. It is contended that the judgment of the court declaring these taxes to be a first lien and ordering a sale for their payment as well as for the payment of the mortgage debt was error, and especially so because no evidence as to the amount of the taxes was received by the court. These claims are without merit. A fair interpretation of the testimony of W. P. Douthitt shows an admission upon his part of the amount and validity of the taxes alleged in the answer of the board of commissioners, and we think that in an equity suit, where the owner of land joins issue upon the existence of a tax lien, as upon the existence and validity of other kinds of liens, a judgment such as the one rendered by the court in this case is proper to be made. Of course, a tax lien may not be foreclosed in court in a suit brought for such purpose, but in a case where tax liens as well as other liens exist, and a clear title cannot be made without ascertaining the amount of the taxes and ordering their payment out of the proceeds of the sale, it is proper to adjudge the priority of the taxes and order theii' payment out of the sale money, and we understand the usual practice is to do so.
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The opinion of the court was delivered by
Doster, C. J. :
The parties to this action have adopted a practice which assimilates the controversy to a proceeding in error, without inquiring whether such practice is correct. It will nevertheless be so treated, and the parties and proceeding designated accordingly. The error claimed is in an order of the district court refusing to entertain jurisdiction of an application by the plaintiff for a new trial. Marion Asbell was convicted of the crime of murder, and upon appeal to this court the judgment of conviction was affirmed. (The State v. As bell, 57 Kan. 398, 46 Pac. 770.) At a subsequent term of the district court the convict filed a petition for a new trial upon the ground of newly-discovered evidence of which he was ignorant at the time of his trial, and which he could not, therefore, with due diligence have produced at the trial. Upon this petition summons was issued and served upon the governor, the attorney-general, the secretary of state, the county attorney, and the county clerk. The county attorney made a special appearance to object to the jurisdiction of the court. He moved to set aside the service of summons upon the ground that the state, being a sovereign power, could not be sued, and that there was no provision of law by which service of summons might be made upon it. This motion was sustained, and the review of that order is the object of this proceeding.
The plaintiff bases his contention upon the provisions of section 242 of the criminal code, and of section 320 of the civil code, General Statutes of 1897. Out of these, aided by incidental reference to sections 601 to 606 of the civil code (Gen. Stat. 1889, ¶ ¶ 4669-4671, 4676), he evolves by construction the theory that the state may be sued by a convicted defendant for the recovery of an order for a new -trial. Section 242 of the criminal code reads as follows :
“ Verdicts may be set aside and new trials awarded on the application of the defendant, and continuances may be granted to either party in criminal cases for like causes and under the like circumstances as in civil cases.”
Section 320 of the civil code reads as follows :
‘ ‘ Where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after discovery; on which a summons shall issue, be returnable and served, or publication made, as prescribed in section 74. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation the case shall be heard and summarily decided at the ensuing term, and if in .term, it shall be heard and decided after the expiration of twenty days from such service. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases ; but no such petition shall be filed more than one year after the final judgment was rendered.”
The claim is that section 242 of the criminal code incorporates within itself, by reference, section 320 of the civil code, and thereby confers jurisdiction to entertain a petition for a new trial upon the ground of newly-discovered evidence, and to issue a summons upon such petition. A question of statutory interpretation is thus raised. Is the first clause of section 242, “verdicts may be set aside and new trials awarded on the application of the defendant,” an independent provision complete within itself, or is it connected with and modified by the succeeding clause, “for like causes and under the like circumstances as in civil cases”? In other words, does the last-quoted clause modify the declaration that “verdicts may be set aside,” as well as the one that “continuances maybe granted”? The plaintiff contends that it does. If so, it would appear that section 320 of the civil code has been made, by adoption, a part of section 242 of the criminal code, and, in consequence, that jurisdiction exists in the courts to entertain a petition for a new trial in a criminal case.
The statute is not of easy interpretation. It may . be read either way, accordingly as it may be punctuated, and as stress may be laid upon the different words and clauses of the sentence. Like all other statutes, it must be construed with other provisions in pari materia. Elsewhere, the criminal code (§§ 271, 274) makes liberal provisions for the granting of new trials to defendants, which, upon first consideration, seem to be intended to include the whole subject, and thus far throughout the history of the state they have been found ample, so far as known, to protect the rights of convicted persons in the respect in question. Again, looking at the precise language of section 242, the case of the appellant is not within its terms. It reads that “ verdicts " xnay be set aside. The case of the appellant has gone beyond verdict; it has gone to judgment, and the statute does not read that “ judgxnents of conviction ’’ may be set aside.
On the other hand, it may be said that the declaration contained in section 242 that “verdicts maybe set aside " is to be considered as modified by the final clause of the section, “for like causes and under the like circumstances as in civil cases," in order to enlarge the rights of defendants in criminal cases beyond those conferred by sections 271 to 274. To hold, however, that the two sections, 242 and 320, were thus amalgamated would be to bux’den a defendant with limitatioxxs as well as to confer upon him additional rights. Section 242 does not adopt the provisions of section 320, eo numero, but it adopts all, if any; of the provisions of the civil code relating to new trials. Some of those provisions limit the time of filing applications for new trial to the term at which the verdict was rendered, and within three days after its rendition. It will, therefore, be seen that the contention of plaintiff involves difficulties of statutory interpretation requiring much labor and learning to resolve. In the view we have of the case it is unnecessary to undertake to resolve them.
The claim is that the statutes quoted confer upon the courts jurisdiction to entertain suits against the state. That claim, as we have shown, is based upon a theory of statutory interpretation which raises nothing beyond an implication, more or less strong. This will not suffice. “A state of the union is not liable to suit in its own courts or those of another state without its express consent.” (23 A. & E. Encycl. of L. 83.) To compel a state upon theories of doubtful statutory interpretation to appear as defendant suitor in its own courts, and to litigate with private parties as to whether it had abnegated its sovereignty or its right of exemption from suit would be intolerable. Except as otherwise provided by the eleventh amendment to the federal constitution, the states, from the nature of their sovereign character, are absolved from the obligation to respond to the demands of suitors in courts. The same exemption was allowed to the sovereign power by the English constitution. The king, by virtue of his sovereignty and as the fountain of justice, was not amenable-in his own courts to the suit of one of his subjects. Sovereignty here exists primarily in the people, secondarily in that political entity called the state, which stands as the representative of the people. In its grace and favor it may waive its sovereign right of exemption, but the waiver must be made in express terms, or at least in terms so clear and unambiguous as necessarily to force upon the mind the implication of waiver. “The right to sue the governor or the state is matter of favor conferred by the state in derogation of that immunity which every sovereign enjoys ; and statutes conferring such privileges are to be construed with strictness so as to extend the right only to those by whom it was clearly intended that it should be enjoyed.” (Rose v. The Governor, 24 Tex. 496.) There being no statute which in explicit terms authorized the suit by the appellant for the recovery of a new trial, the subsidiary proposition argued by counsel, that summons may be served upon the governor, the attorney-general, and other officers, need not be, in fact cannot be, reviewed.
The State v. Calhovn, 50 Kan. 523, 32 Pac. 38, gives no countenance to an opposing view. In that case the state had sued and recovered a judgment of conviction against the defendant. The defendant instituted a proceeding in the very same case by virtue of his being a party to the record. He did not institute a new suit such as is allowed by section 320 of the civil code. The record of his case, though apparently closed, was in reality open to him for the introduction into it of an extraneous fact properly constituting a part of it. For the purpose of his right to do this the state was still in court, and subject to the challenge of the defendant’s motion.
The order of the court below setting aside the service of summons is affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
On the 27th day of May, 1897, at the regular May term of the district court of Chautauqua county, a verdict was returned in favor of the plaintiff below, Clement, Bane & Company, against the defendant S. T. Hartzell, sheriff, for the sum of $4357.57, together with certain special findings of facts submitted to them by the plaintiff and defendant. Afterward, and on the same day, the defendant filed his motion for judgment in his favor on the particular questions of fact answered by the jury, notwithstanding the general verdict. This motion was filed on the last day of the May term, and counsel for plaintiff and defendant having announced that they were not fully prepared to argue such motion, the hearing of the same and further proceedings in the cause were by the court, with the consent of both parties, continued to the next term of the court, with leave to either party to present written briefs in the meantime. The next term of the court commenced on the fourth Tuesday in October.
On the 25th day of October, 1897, the defendant filed his motion. to set aside and vacate the special findings of the jury and the answers made to twelve of said particular questions, for the reason that the answers were not supported by the evidence and were contrary thereto. On the following day this motion was overruled, and on the same day the motion of the defendant for judgment in his favor, notwithstanding the verdict, was argued, considered by the court, and overruled. Thereupon the plaintiff below moved the court for judgment in accordance with the verdict of the jury theretofore rendered on the 27th day of May, 1897, which motion was by the court sustained, said j udgment being as follows :
“It is therefore considered, ordered and adjudged by this court that the plaintiff herein, Clement, Bane & Company, a corporation, do have and recover of and from- the said defendant, S. T. Plartzell, the sum of 14357.57, with interest thereon at the rate of six per cent, per annum from the 26th day of October, 1897, and costs of this suit, taxed at $-■. And hereof let execution issue.”
Afterward, on the 28th day of October, 1897, the defendant filed his motion for a new trial, as follows :
“Now comes the above-named defendant and moves the court to vacate and set aside its decision and judgment in the above cause, and to set aside the verdict and special findings of the jury, for the reasons following, to wit: (1) That the decision and judgment of the court are not sustained by the evidence, or by sufficient evidence. (2) That such decision and judgmént are contrary to the evidence. (3) Errors of law occurring at the trial, and excepted to by defendant at the time. (4) Error of the court in excluding material and competent evidence offered by the defendant. (5) Error of the court in refusing to require the jury to answer special questions submitted to them by both the plaintiff and defendant. (6) Error of the court in refusing to require the jury to answer more fully and specifically the questions submitted by the defendant and numbered. (7) That under the general verdict and the special findings of the jury the court has no power to render judgment for any amount in favor of the plaintiff.”
On the 10th day of November, 1897, the same being one of the days of the regular October, 1897, term of said court, said motion came on to be heard. The plaintiff below objected to its consideration upon the ground that the same was not filed within three days from the rendering of the verdict, nor at the same term at which the verdict was rendered, which objection was overruled. Thereupon the court sustained the motion.
Section 318 of chapter 95 of the General Statutes of 1897 (Gen. Stat. 1889, ¶ 4403) provides:
“The application for a new trial must be made at the term the verdict, report or decision is rendered; and, except for the cause of newly-discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.”
The word “decision” in the above section has reference to the decision of the court where the action is tried without a jury. Hence, the first two grounds of the motion for a new trial were inapplicable to a case where the judgment is based upon the verdict of a jury. (Gen. Stat. 1897, ch. 95, § 316; Gen. Stat. 1889, ¶ 4401.) The remaining grounds for a new trial, with the possible exception of the last one, are founded upon alleged errors committed by the court which preceded the return of the vex-dict. Manifestly such errors must be brought to the attention of the court by a xnotion filed at the same tex*m at which the verdict was returned, and within three days thereafter. (Glass Co. v. Bailey, 51 Kan. 192, 32 Pac. 897.) Under the statute this court can review the action of the district coxxrt in granting a new trial, or in refusing to do so, after a verdict has been received and before any judgxnexit has been rendered thereon. (Gen. Stat. 1897, ch. 83, § 7; Gen. Stat. 1889, ¶ 4641; City of Ottawa v. Washabaugh, 11 Kan. 124.)
In the case of City of Osborne v. Hamilton, 29 Kan. 1, a motioxi was filed for judgxnent upon the' special findings of the jury immediately after the general verdict and special findings were returned. The motion was heard and overruled by the court eight days afterward, and immediately thereafter defendant filed a xnotion for a new trial, founded upon erx’ors and irregulaxities occxxrring at and during the trial, and no reason was given for not filing the xnotion earlier, except that the motion for judgment on the special fixxdings of the jury was undisposed of befox’e the coxxrt. It was held by this court in that case that the motion for a new trial was not filed within proper time axxd could not be considered; that the reason given for the delay ixx filing the saxne, because the xnotion for judgxnent on the special findings of the jury was pending and xxndisposed of, was insufficient, and the motion was in fact a nullity because filed too late.
In Fowler v. Young, 19 Kan. 150, the court uses the following language:
“Various errors are alleged as occurring during the trial in the admission of testimony, etc. ; but unfortunately for the plaintiffs in error, the motion for a new trial was not filed until four days after the verdict, and no reason shown for the delay. Hence, as already settled by this court, none of these questions so fully discussed by counsel are before us for consideration.”
In Railroad Co. v. Holland, 58 Kan. 317, 49 Pac. 71, in discussing the question as to whether a motion for a judgment on the special findings and a motion for a new trial are consistent with each other, the court uses the following language :
“Each is an attack on the general verdict, and, if it is not set aside upon the first motion and judgment given on the special findings, the court is asked upon the second motion to set it aside and grant a new trial. Probably a written motion for judgment on the findings is not essential. ... If such a motion is filed and the decision thereon is not promptly given, a party cannot safely defer his motion for a new trial. . . . The pendency of a motion for judgment on the findings affords no excuse for a delay in filing the motion for a new trial more than three days after the rendition of the verdict. A motion filed after that time is a nullity.”
■ The defendant below seems to have relied upon his motion for judgment on the particular questions of fact, and it was only after this motion was overruled that he interposed his motion for a new trial.
The seventh ground of the motion for a new trial seems to relate to the action of the court in refusing to sustain the motion of the defendant below for judgment on the findings of the jury. No motion for a new trial was a necessary prerequisite to a review of that question by this court. Here an issue of law arises. Section 316 of chapter 95, General Statutes of 1897, defines a new trial to be a reexamination in the same court of an issue of fact. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 Pac. 718.)
The defendant in error contends that the motion for a new trial having been filed within three days after the judgment, and at the same term of court judgment was rendered, the requirements of the statute were satisfied. This position is untenable for the reasons above stated. The motion having been filed more than five months after the return of the verdict, and at a subsequent term, the court was without power to grant the same.
The order sustaining the motion for a new trial will be reversed, with directions to enter judgment on the verdict in favor of the plaintiff below. | [
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The opinion of the court was delivered by
Dostek, O. J. :
This was an action of forcible detainer, brought by the plaintiffs in error against the defendants in error before a justice of the peace, and by him certified to the district court because it involved the title to real estate. The case was tried in the district court and the statutory form of verdict “ not guilty ” found in defendants' favor. Upon this verdict judgment was entered and the plaintiffs prosecuted error to this court.
The value of the property, the possession of which is in dispute, is more than $2000, and if the thing in dispute were the property, and not the right to its possession, we would have jurisdiction, but the thing in dispute is not the property. It is the mere right of its possession, and in the necessary nature of the thing its value cannot be $2000. It would seem from the record that the real estate itself was not worth much more than that amount. The thing in dispute in forcible detainer, and forcible entry and detainer, is not the title to the real estate but the mere right to its possession. In such class of actions the title to the real estate is often involved, but it is involved as an incident only and not as the main subject of controversy. (Conaway v. Gore, 27 Kan. 122.) The fact that the title to real estate becomes incidentally involved in a suit is not sufficient to give this court jurisdiction within the meaning of the statute allowing appeals from the court of appeals as a matter of right. (Park v. Busenbark, 59 Kan. 66, 51 Pac. 907.) That an action of forcible detainer is a mere possessory action, involving land title only as it may sometimes becoine necessary to make proof of it in order to determine the right of possession, is well established by the decisions of this court. (Conaway v. Gore, supra; Buettinger v. Hurley, 34 Kan. 585, 9 Pac. 197; Ow v. Wickham, 38 id. 225, 16 Pac. 335.) Under the peculiar provision of our statute a judgment in such kind of action is conclusive upon neither party to it. (Gen. Stat. 1889, ¶ 5016.)
We have no jurisdiction in the case and it is accordingly dismissed. | [
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Per Curiam :
This proceeding involves the validity of the statutory provisions authorizing the levy and collection of state delinquent taxes by the authorities charged with that duty. "We agree with the court of appeals that the case must be determined on the agreed facts, and .that the affidavit used in obtaining the temporary order cannot be considered. A correct conclusion was reached, that section 102 of the tax law makes each county responsible to the state for the full amount of the taxes apportioned to the county and levied for state purposes, with the exception of double or erroneous assessments, and where warrants are issued for the collection of taxes on personalty and returned “not found” or “no property.” The case of The State, ex rel. the Attorney-general, v. Comm’rs Leavenworth Co., 2 Kan. 56, was decided before the statute referred to was enacted, and when the county was not held responsible for the state tax, and is, therefore, not applicable or controlling. The state tax is apportioned among the several counties according to the assessed valuation, and on this basis the burden is distributed equally throughout the state on all counties alike. If all the state tax apportioned to a county be not raised by the levy in any year, the delinquency must be provided for in the succeeding year, and it would not be easy to devise a more practical or efficient way of raising such delinquency than by a levy on all the property of the county. Other provisions of the statute provide a system by which counties may obtain credits, and whereby the county may collect and retain the state tax on property sold for taxes. When such property is redeemed, the state tax thereon, together with interest and penalties, is held by the county and applied to future requirements for state purposes, and to that extent lightens the burden of future taxation. We see no constitutional objection to the legislation making each county liable for the state tax apportioned to it, nor do we find a lack of equality and uniformity in this tax of which the railroad company has cause to complain. Following the.ruling of the court of appeals in this case, Clark v. Railway Co., 8 Kan. App. —, 54 Pac. 931, as well as that in McIntire v. Williamson, id. —, 54 Pac. 928, we hold the tax to be valid, and therefore the judgment of the court of appeals with respect thereto is affirmed.
The record in this case involves the question of the validity of a fire tax levied under the authority of chapter 263, Laws of 1895 (Gen. Stat. 1897, ch. 170). That question was determihed in Railway Co. v. Clark, immediately preceding, wherein it was held that the statute authorizing the tax was invalid, and for the reasons therein stated the judgment of the court of appeals sustaining the validity of the statute and the regularity of the tax will be reversed. | [
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The opinion of the court was delivered by
Smith, J. :
The admitted facts in this case are as follows: On July 16, 1891, John Ernst, a widower, and Henrietta Juencke, a 'widow, both of Atchison county, entered into an antenuptial agreement in writing, and immediately thereafter were married to each other. At that time Ernst owned more than 500 acres of land in Atchison county and considerable personal property. Mrs. Juencke owned a half interest in forty acres of well-improved farm land near Atchison, which she at the time supposed she owned absolutely, and a large amount of personal property. Mr. Ernst had a number of children by a former marriage living near and with him; and Mrs. Ernst- a sister, toward whom she was very affectionately disposed. The parties to the antenuptial agreement had no children by their marriage. Mrs. Ernst died on August 14, 1896, leaving Mr. Ernst her sole heir unless he is excluded by the terms of the antenuptial agreement.
Mrs. Ernst’s estate at the time of her death was in the hands of a guardian, appointed because of her insanity, occurring subsequent to the marriage, and was by such guardian turned over to the plaintiff in error, .Kistler, as administrator of her estate. The debts of rthe estate were substantially all liquidated at the time these proceedings were commenced, the net assets in the hands of the administrator being about $4000. ‘Mr. Ernst, as primarily sole heir, claiming not to be barred by the antenuptial agreement, applied to the probate court for an order on the administrator to turn over the funds to him as sole distributee, tendering a bond with sufficient sureties, as provided by the statute. The probate court held that he was barred of any interest in the estate by .the antenuptial agreement, and denied his application. He appealed. The application was tried ele novo in the district court, and judgment rendered in favor of Ernst, ordering the administrator to turn over to him the estate upon the giving of a bond.
The agreement between the parties was as follows :
“This agreement, made and entered into this 16th day of July, A. d. 1891, by and between John Ernst and Henrietta Juencke, both of Atchison county, Kansas,
“Witnesseth, that whereas, said parties have respectively promised and agreed to marry each other, now, in consideration of said promise to marry each the other, said parties do make and enter into the following antenuptial agreement, that is to say, it is mutually agreed that said John Ernst shall have; hold, keep and retain all of the property which he now has or may hereafter acquire, whether real, personal, or mixed, and wherever situate, as his sole, exclusive and absolute property, free from all claims, rights and interest of his said intended wife, with the right on his part to, by gift, sale, will, or devise, dispose of the same in such manner and to such persons as he may desire, the said Henrietta Juencke hereby consenting to such disposition of all such property as fully in all respects as if the same should be by will devised by said John Ernst after such marriage and the consent of said Henrietta, then being his wife, indorsed in writing thereon ; and that said Henrietta Juencke shall have, hold, keep and retain all of the property which she now has or may hereafter acquire, whether real, personal, or mixed, and wheresoever situate, as her sole, exclusive and absolute property, for her separate use and benefit, free from all claims, rights and interest of her said intended husband, John Ernst, with the right on the part of the said Henrietta to, by gift, sale, devise, or will, dispose of the same to such persons as she may desire, the said John Ernst hereby consenting to such disposition of all such property in all respects as if the same should be by will devised by said Henrietta after such marriage and the consent of said John Ernst indorsed in writing thereon.”
The question here involves the construction and legal effect of this agreement. By the plaintiff in error it is contended that the writing was intended to control and dispose of all property rights of both parties to it and to extinguish all the statutory rights which either would have in the property of the other in consequence of the marriage, and substitute for any rights of either in the property of the other the exclusive enjoyment, control and devolution by inheritance of his or her own individual property. It is also claimed that the contract did no more for the parties regarding the control, enjoyment and ownership of the separate property of each than the law would do had no agreement been made. Hence, not modifying the property rights of either party during life, in order to give effect to the terms of the instrument, it must be held that the intention of the parties was to change the rule of descent fixed by law.
The contract seems to have followed the law and conferred no greater rights on either party than were vouchsafed by the statute, with these limitations*: Any conveyance, gift or sale of the property of one during coverture could not be challenged as being in fraud of the rights of the other. The antenuptial agreement worked an estoppel on both parties and silenced all complaint of one against alienation by the other, fraudulent or otherwise. It also gave to each the right to convey his or her real estate by separate deed and pass a merchantable title. It gave the power to bequeath and devise all the property of each by separate will. Thus the contract performed some service in respect to the property of both parties dur ing coverture, and its terms, to the extent stated, modified and changed rights secured by the statute. The wife, Henrietta, reserved the “right, by gift, sale, devise, or will, to dispose of the same [.her property owned at the time of marriage or acquired afterwards] to such persons as she may desire, the said John Ernst, hereby consenting to such disposition of all such property in all respects as if the same should be by will devised by said Henrietta after such marriage and the consent of said John Ernst indorsed in writing thereon.”
There is no express agreement in the contract which excludes the husband from a right of inheritance on the death of the wife. She had the right to devise her property to whom she pleased, and the consent of her husband was given in advance. .Under the position taken by plaintiff in error, a devise by will to the husband was necessary on the part of the wife, should she have desired that he take her property at her death. The law obviated all necessity for a will in such case, as we construe the contract. There is nothing in the contract that' convinces us that Ernst, by the ágreement, surrendered or released his right of inheritance as the survivor of his wife. In the case of Stewart v. Stewart, 7 Johns. Ch. 229, in commenting on the construction to be given to an antenuptial contract, it was said by Chancellor Kent:
“I believe it has been the invariable practice, and that the uniform course of the precedents will show it, that when it is intended in a marriage settlement to exclude the right of the husband to her personal property, in the event of his surviving her, and in default of her appointment, an express provision to that effect is inserted in the deed.” (Bailey v. Wright, 18 Ves. 49; Donnington v. Mitchell, 1 Green’s Ch. [N.J.] 243; Brown v. Alden, 14 B. Mon. 141.)
The counsel for plaintiff in error, by a refinement of reasoning, seeks to read into the agreement provisions founded on implications and probabilities as to the intention of the parties, which cannot be justified under the language of the instrument. The wife had the right of disposition, which she did not see fit to exercise. This failure to make disposition might have been induced by the affection she bore for her husband, knowing that upon her death the law would place her property in his hands as effectually as if a formal will had been made.
We think the trial court placed a proper construction on the contract, and the judgment will be affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
It will be decisive of' this case to determine whether a tenant of the owner of a fee-simple title to real estate may attorn to the holder of a tax deed regular on its face but voidable for the reason that illegal taxes were included in the amount of the expressed consideration stated in the same.
The plaintiff below, plaintiff in error here, was defeated in his action to quiet title upon the ground that he was not in possession of the property. One Barnes, the tenant of the defendants in error, after a tax deed had been issued, recorded, and exhibited to him, recognized the tax-deed holder as his landlord, and the plaintiff below, who was the grantee in such deed, alleged this possession as the basis for a suit to quiet his title against the original owners. The court of appeals held (Sheaff v. Husted, 8 Kan. App.-, 55 Pac. 507) that this act of attornment on the part of the tenant was a denial of the title of the landlord, coming within t'he familiar rale that the tenant cannot be permitted to dispute such title.
We differ with the court of appeals in the application of the rule to the facts of the case before us. The plaintiff in error held a tax deed, which was regular upon its face and in substantial conformity with the form prescribed by section 197, 'chapter 158, General Statutes of 1897 (Gen. Stat. 1889, ¶ 6991). When presented with this title the tenant-was justified in recognizing the grantee in such deed as the owner of the property. The original owner had suffered the property to be sold for taxes and his-delinquency continued until a tax deed was issued. It has been held, in Smith v. Cooper, 38 Kan. 446, 16 Pac. 958, that a tax deed void on its face conveys no title. The tenant, however, by an examination of this deed could see that it conveyed title, and it would be unreasonable to require him to examine into the tax proceedings back of the deed and make his-right to attorn depend on their regularity. In 1 Wood’s Landlord and Tenant, 497, it is said : “In all cases it is competent for the tenant to show that the landlord’s title has terminated, as, that the premises have been sold under foreclosure proceedings, under execution, or for taxes, or, indeed, that the title of the landlord has, from any cause, expired.” See Weichselbaum v. Curlett, 20 Kan. 709; Lyn v. Washburn, 3 Colo. 201; George v. Putney, 4 Cush. 351.
The judgments of the court of appeals and the district court are reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Smith, J. :
This was an action in trover brought by the plaintiff in error in the court below against the sheriff for the conversion of certain goods. The action was based on a chattel mortgage executed by one John H. Johnson to Peter Johnson to secure three promissory notes aggregating the sum of $4500, given by the former, which were past due at the time the mortgage was given. The plaintiff below became the owner of the notes and mortgage by assignment from Peter Johnson. Said mortgage was the third lien oh a stock of merchandise, made subject to a first mortgage for $476.63, and a second, in favor of the Farmers’ National Bank, for $800. While the second mortgagee was disposing of the goods and applying the proceeds-to the payment of its mortgage claim, the first having-been satisfied out of the proceeds of goods sold, a writ of attachment was levied on the property by the defendant in error, as sheriff, at the suit of a creditor of John H. Johnson, the mortgagor, and the property was seized as belonging to him.
The petition in the action set out the notes and the mortgage as exhibits thereto, and alleged that the mortgage created a just and valid lien upon the property described, and that the plaintiff was entitled to the immediate possession of the same ; that no part of the indebtedness represented by said notes had been paid, and that there was still due thereon the principal sum of $4500 and accrued interest; that the defendant sheriff without right took and carried away a portion of the mortgaged chattels and converted the same to his own use and refused to return the same on demand, to the damage of the plaintiff in the sum of $1015; that the mortgage of the plaintiff below was taken subject to two prior mortgages, it being agreed that. when the prior mortgages were satisfied the residue of the goods was to be delivered into the possession of the plaintiff. The mortgage contained certain provisions in substance as follows :
‘ It is hereby agreed that if default be made in the rpayment of said sum of money, or upon a failure to •comply with any of the conditions herein mentioned, ■then the whole sum of money hereby secured shall, at the option of the legal holder, become due and payable. And it is hereby agreed that in case of a sale, disposal, removal, unreasonable depreciation, or if the security shall become inadequate, or the party of the second part shall deem himself insecure, then it shall be lawful for the party of the second part to take •and dispose of the property at public or private sale. And until default be made as aforesaid, or until such time as the party of the second part shall deem him•self insecure as aforesaid, the party of the first part to continue in the peaceable possession of all the said :goods and chattels.”
The defendant Anderson answered, justifying his •.seizure of the goods under the attachment, and alleged that at the time of the levy of the writ the property was in possession of the Farmers’ National Bank under a certain chattel mortgage theretofore executed and delivered to it by said John H. Johnson, which chattel mortgage was the only bona fide lien upon said property, and that the chattel mortgage described in plaintiff’s petition was executed for the purpose of hindering, delaying and defrauding the creditors of said John EL Johnson, and that no consideration was given therefor; and further, that the notes set out in plaintiff’s petition had been paid.
A trial was had, resulting in a verdict and judgment for the plaintiff below in the sum of $1195.83. Proceedings in error were prosecuted to the court of appeals, northern department, where the judgment of the court below was reversed upon the ground that the petition did not state facts sufficient to constitute a cause of action, the court holding that there was nO' allegation therein that any of the conditions of the mortgage had been broken, nor allegations showing that the plaintiff below was entitled to the possession of the mortgaged property at the time of the alleged conversion or when the action was commenced ; and further, that the petition did not contain any averment that the notes were unpaid, or that there was anything due thereon.
We do not think the position taken by the court of appeals is well founded. The notes, being past due at the time of the execution of the mortgage, became immediately payable, and hence the mortgagee was entitled to possession at once after the execution and delivery of the mortgage. (Jones, Chat. Mort., §§ 87, 770; Bearss v. Preston, 66 Mich. 11; Johnston & Son v. Robuck, 104 Iowa, 523, 73 N. W. 1062.) In Jones on Chattel Mortgages, 4th ed., section 703, it is said:
“If the mortgage secures a debt already.due, and specifies no time of payment, it is payable immediately, and the mortgagee becomes the absolute owner from the moment of a demand and refusal or neglect of payment. The mortgagor has then merely an equitable right to pay off the mortgage, and his position is that of a bailee."
The sufficiency of the petition was raised by an objection to the introduction of any evidence under it. This method of attack is not favored, and the allegations of the petition will be construed liberally for the purpose of sustaining it. (The State v. School District, 34 Kan. 237, 8 Pac. 208.) The conditions of this mortgage were broken immediately by failure to pay the mortgage debt then due at the time of delivery. We do not agree with the court of appeals that the petition failed to state that the notes were unpaid. It had attached thereto copies of the notes with indorsements thereon, showing partial payments on two of them, with an allegation that all the indorsements thereon were set forth. Deducting the credits, the sum appearing to be due amounted to more than the value of the property converted by the sheriff. The allegation in the petition that the plaintiff had a just and valid lien upon the property is equivalent to saying that the mortgage debt had not been satisfied by payment or otherwise. (Wilkins v. Moore, 20 Kan. 538; Chaffee v. Browne, 109 Cal. 211, 41 Pac. 1028; Baldwin v. Boyce, 51 N. E. [Ind.] 334.) The copies of the notes, which were made part of the petition, showed a balance due the plaintiff below, and no presumption existed that this balance had been paid. The defendant sheriff alleged in his answer that the indebtedness was paid, and it was incumbent upon him to establish this fact. “ Where the defense is the payment or satisfaction of a note or a mortgage sued on, by money or otherwise, such defense is to be proved by the party making the same.” (Miller v. McElwain, 52 Kan. 94, 34 Pac. 396; National Bank v. Hellyar, 53 id. 695, 37 Pac. 130.)
The contention that there was no demand upon the sheriff, and that the same was necessary, is without merit. The statute vests the legal title and the right of possession in the mortgagee in the absence of stipulations to the contrary. After condition broken, as in this case, the title and possession were subject only to a claim of one of the prior mortgagees for a small amount at the time the writ of attachment was levied. The defendant in error, having wrongfully converted the property in violation of the rights of the plaintiff mortgagee, no demand was necessary to fix his liability before the commencement of the action. Besides, the defendant below justified his right of possession under the attachment and did not rely upon want of demand. Proof therefore of a demand Avas unnecessary. (Raper v. Harrison, 37 Kan. 243, 15 Pac. 219; 2 Cobbey, Chat. Mortg., § 742.)
It is contended that the plaintiff below being a third mortgagee, and one of the prior mortgages being partly unpaid at .the time of the attachment, no recovery can be had. The law is otherwise. (Rankine v. Greer, Adm’r, 38 Kan. 343, 16 Pac. 680; Treat v. Gilmore, 49 Me. 34; Talcott, Trustee, v. Meigs, 64 Conn. 55, 29 Atl. 131.)
We have examined the other questions discussed in the brief of the defendant in error and do not find in the record any errors committed by the trial court justifying a reversal of the judgment. Whatever our views may be as to evidence of fraud in the chattel mortgage assigned to Mrs. Johnson, an expression of the same would serve no useful purpose, for the reason that all questions of good faith Avere submitted to the jury under instructions -which stated the law, and the verdict founded thereon cannot be disturbed-
Differing, as we do, with the court of appeals as to the sufficiency of the petition, the judgment of that court will be reversed and the judgment of the district court affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
From the pleadings and plaintiff’s statement of the case it was made clearly to appear that all the negotiations of the parties preceded the signing of the agreement made between them, and that the only consideration for the same was the alleged liability of the defendant for the injury and death of plaintiff’s father. It is not claimed that fraud was used in inducing the settlement which was made or in procuring the execution of the agreement which was signed by both parties. The execution and validity of the agreement were in fact conceded, but it is insisted by plaintiff that it does not express all of the agreements of the parties, but that a part consideration for the release was the parol' promise of permanent employment, which was not embodied in the writing. The only question, therefore, presented for decision is whether the parol promise of employment, which it is alleged constituted a part of the consideration for the settlement and release, may be proved by parol.
The general doctrine is that all oral negotiations are merged in the written agreement, and that the terms of such agreement cannot be contradicted, altered, added to or varied by parol evidence. Parties who reduce their agreements to writing and intend to make the writings the only evidence of their agreements would have little protection against defective memories or the uncertainty of oral testimony if parol proof of provisions inconsistent with those embodied in the writings may be received. There are well-recognized exceptions to the rule excluding oral and extrinsic proof, as that a mere-receipt is subject to be explained, controlled or contradicted by parol testimony. And so it is with a formal recital in a deed of conveyance acknowledging the receipt of purchase-money. Such an acknowledgment, like an ordinary receipt, is subject to be explained, varied and contradicted by extrinsic testimony. Unilateral admissions of this character are not conclusive upon the parties making them, but' if a writing purporting to be a receipt is in fact a completed contract of the parties, parol evidence is inadmissible to vary or contradict its terms. (K. C. & O. Rld. Co. v. Hicks, 30 Kan 288, 1 Pac. 396; C. B. & Q. Rld. Co. v. Imhoff, 3 Elan. App. 765, 45 Pac. 627.) Where the consideration stated in a deed is mere recital and bears no evidence of having been made a matter of contract, parties are not estopped to show a different consideration ; but where it appears to be more than a mere recital and is in anywise contractual, parol evidence cannot be admitted, nor will it be received where it would operate to defeat or destroy the conveyance itself. (Miller v. Edgerton, 38 Kan. 36, 15 Pac. 894.) Where the written agreement is incomplete, and it is obvious that it does not embrace the entire agreement of the parties, oral testimony may be received to supplement and explain what is written.
The writing in the present case does not fall within any of the exceptions. It was more than a mere recital or unilateral admission, as it was signed by both the plaintiff and the defendant. The negotiations-proceeded for a considerable time, and culminated in the agreement, which upon its face appears to be complete and a final disposition of the claims and rights of the parties. It recites the death of plaintiff’s father, the claim that'it was due to the negligence of: the defendant, the desire of the parties to settle all claims of liability that might exist by reason of the death, refers to the next-of-kin who were entitled to claim damages if the death was due to negligence, and provides that the Armour Packing Company should pay to Peter on account of the claim the sum of $200 in cash. Por this amount of money he agreed to satisfy all claims of any and every kind arising out of or in anywise connected with any claim for the death of his father. More than that, he was required by the terms of the agreement to make diligent effort to obtain the release of his mother on or before a certain time for the sum of $300, and if it turned out that she was dead and there were no next-of-kin, and the plaintiff was the sole representative of his mother, the $300 should be paid to the plaintiff. The contract evidences the complete disposition of the plain tiff’s interest by reason of the death of his father and the complete settlement of his claims for such death. It is' evident that the amount to be paid by reason of the liability for 'the death of the father was the important feature of the agreement, and, .judging from the acts that were to be performed by both parties, it is clear that the consideration entered into the contract and is not merely matter of recital; on the other hand, it is expressly admitted that the only consideration for the written as well as the alleged oral agreement was the liability arising from the injury and- death of the father. In the written agreement, however, which was executed, the plaintiff, besides stipulating to do other things, clearly and expressly released the defendant from that liability and for a specified sum of money. Nothing in the writing suggests that the amount of money was not the whole consideration, nor that the agreement was only a partial discharge of the liability. It would be difficult to suggest language more clearly indicating a purpose to discharge the defendant from all liability for the expressed consideration than was used in this writing. To permit the plaintiff to show the parol promise would be a material addition to a contract apparently complete in itself and one entirely inconsistent with its terms.
In Cornell v. St. L. K. & A. Rly. Co., 25 Kan. 613, an agreement relinquishing a right of way to a railroad company for a specified consideration was made between the parties, but afterward the landowner claimed that an oral agreement had been made, and that as a further consideration for the relinquishment he was to have an annual pass during his life and a reduction of ten dollars from the regular rates for each car of freight which he might ship to St. Louis. It was held, however, that the agreement was the best possible evidence of the intent of the parties-, that it presumably embraced all the negotiations of the parties, and therefore that evidence of the parol agreement which would enlarge the written contract and materially vary its terms was not admissible.
Jessup v. C. & N. W. Ry. Co., 99 Iowa, 189, 68 N. W. 673, is a pertinent authority in this case. The plaintiff was employed by the defendant, and while in the service was injured through the alleged negligence of the defendant. A written agreement was made by the terms of which the defendant was to pay the plaintiff $400, certain board and doctor’s bills, and furnish him with an artificial limb, in consideration of which the plaintiff released the defendant from all liability for damages growing out of the injury. Afterward the plaintiff brought an action and undertook to prove as an additional consideration an alleged oral agreement for permanent employment, but the court ruled that the written contract should be deemed to express the real intent of the parties, and that evidence of the parol and contemporaneous agreement could not be received.
Myron v. Union Railroad Co., 19 R. I. 125, 32 Atl. 165, involved the same question and was decided in the same way. The plaintiff, who was injured, agreed to release the defendant from all present or future liability for the injury in consideration of $900. In the face of the release, however, he afterward claimed that a part of the agreement was that the defendant should give him employment at certain wages so long as he should live and be willing to remain in the employ of the company. The court remarked that to allow him to prove the parol agreement ‘ ‘ would be to permit the plaintiff by oral testimony to add to the terms of a written instrument which is apparently complete in itself a matter concerning which the instrument is silent, and that, too, when in legal contemplation the release is to be regarded as the only evidence of the contract of the parties as finally concluded.” See, also, White v. Railroad, 110 N. C. 456, 15 S. E. 197; St. Louis & S. F. Ry. Co. v. Dearborn, 23 U. S. App. 66, 60 Fed. 880; Baum v. Lynn, 72 Miss. 932, 18 South. 428; Cummings v. Bears, 36 Minn. 350, 31 N. W. 449.
The plaintiff strongly relies on The Pennsylvania Company v. Dolan, 6 Ind. App. 109, 32 N. E. 802, and Harrington v. K. C. Cable Ry. Co., 60 Mo. App. 228, but the writings upon which the decisions are based in those cases are quite dissimilar from that in the case at bar, and neither of them, as will be seen, was decided by the courts of last resort; and even in those cases the exception to the rule is recognized, that where the parties have undertaken to specify the consideration in the writing, and such consideration is contractual in its nature, parol evidence of other or different considerations will not be admitted. The writing in the present case is so clearly contractual in character as hardly to admit of discussion, and under the authorities parol proof of other understandings than those embodied in the writing cannot be received. From the opening statement of counsel it is clear that the plaintiff is not entitled to recover upon either count of his petition, and therefore the judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
In her petition in the court below Flora E. Eagon alleged that on December 17, 1894, she was married to James S. Eagon; that she lived happily with him, without discord or disagreement, until October 10, 1895, when the defendant John M. Eagon, father of her husband, by means of misrepresentations, statements and inducements then and previously made to his son, purposely, wilfully and maliciously procured his son to separate himself from plaintiff, to neglect his marital duties, and wholly to cease to live with her, thus alienating the affections of her husband from her and causing a permanent separation. A trial was had, with a verdict and judgment; for the plaintiff below. She produced at the trial witnesses to conversations had by the defendant John M. Eagon with his son, her husband, wherein the defendant below had made promises to and threats toward his son, thus inducing him to separate from the plaintiff. The nature of this testimony is shown by an extract from the deposition of one Go-forth : “Well, Jim asked his pa for some money; Mr. Eagon said, ‘What do you want with it, Jim?’ ‘ Why,’ he says, ‘ I want to go to housekeeping.’ Mr. Eagon says, ‘You shan’t have a cent of my money as long as you live with that woman.’ ” The defendant below offered to show, by his own testimony and that of another witness, that, in conversations with his son during the time when he was charged with making. such inducements, he used language toward him of directly opposite import from that testified to by the plaintiff’s witnesses ; that he told the son to bring his wife to his house, and, on another occasion, that he ought to live with her, etc. Such proof was excluded by the court on the ground that defendant’s statements to his son were self-serving declarations, made in his own interest, and that they were hearsay and no part of the res gestee.
It is not contended that such conversations with his son favorable to himself, which the defendant below sought to bring before the jury, were parts of conversations testified to by the witnesses for the plaintiff below, or tending to explain what he said to her witnesses, but were statements made by him to his son at other times, possibly days or weeks prior or subsequent to the declarations of defendant heard by the witnesses of plaintiff below. The testimony offered did not tend to explain or illustrate the main fact, which was what defendant below said against the marital interests of his daughter-in-law. Contradictory words would fall outside of the res gestee, and hence were incompetent as evidence. The main fact being the hostile attitude of the defendant below, his declarations showing expressions of friendship were not calculated to explain or to characterize such acts and conduct as were shown by the evidence introduced by plaintiff. Greenleaf, in his work on Evidence, in defining res gestee, says : “The principal points of at tention are whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.” (Vol. 1, § 108.) Res gestae are.matters incidental to a main fact, and explanatory of it, including acts and words which are so closely connected with a main fact as really to constitute a part of it, and without a knowledge of which the main fact might not be properly understoood. Where the res gesta is a declaration of a particular kind, another declaration made at another time, in no way related to it, and of directly opposing character, is not explanatory; it is contradictory.
The main fact under consideration here being whether the defendant below.had, by hostile acts or words, alienated the affections of his son from his son’s wife, statements made at other times than those testified to by the plaintiff’s witnesses would not be contemporaneous with the main fact, and for that reason were objectionable. Nor is such testimony admissible for the purpose of showing the state of mind of the defendant below toward the plaintiff in the action. The defendant’s state of mind was not the question to be litigated, and the court below would embark upon an unprofitable voyage of psychological discovery, resulting in no return of practical value, in permitting the defendant to show, by relating conversations with his son, the state of his mind as affecting his conduct in the case stated.
A question of practice is involved in the refusal of the trial court to permit counsel for the defendant below to make the offer of proof above mentioned. He was required to ask the witness questions calling forth the testimony he desired to get before the jury. This requirement has left the record of the testimony-sought to be elicited in an unsatisfactory condition. It is difficult in most cases to present to the court explicitly in the form of questions the exact proof offered. Where the questions do not clearly show the nature of the testimony an offer of proof ought to be received. In fact, the precise question involved can thus be more clearly presented to the trial court and preserved in the record for review. We approve the practice of making the tender. (The State v. Barker, 43 Kan. 262, 23 Pac. 575.) In Elliot, App. Proc., § 743, it is said :
“ In the examination-in-chief the exclusion of testimony is not available as error unless the party makes an offer to prove the facts which he assumes that -his question will elicit. Where an objection is properly interposed more must be done, in cases where the objection is sustained, than to ask the question ; the party producing the witness and insisting upon the question must state what he proposes to prove by the witness. This is necessary in order to enable the court to determine whether the testimony is competent and material. The record must show the offer, and show also the presence of the witness. The court will not rule upon mere abstract questions, and hence it must appear that there was an actual offer and a present ability to adduce the proffered testimony. The facts proposed tobe proved must be specifically stated. . . . In short, there should be satisfactory indications of willingness, x’eadiness, good faith, and present ability.”
We think the court should have permitted counsel for the defendant below to make axi offer to prove those facts which were so imperfectly developed by the several questions asked of the witnesses.
The plaintiff below was permitted to testify concerning the actions and manner of her husband at a time when he and his father were in a freight-car at Overbrook. This was to the effect that the former came to the car door and took a position indicating that he was about to step out, that he looked at his father, turned around, and went back into the car. It is claimed that this was incompetent, as constituting a communication between husband and wife. We do not think so. The communication, if any was shown, was between father and son. It is contended that the wife is not disqualified from giving testimony of communications had with her by her husband in the presence and hearing of third persons ; that it is the privacy of the confidential relation between husband and wife that the law seeks to protect. This contention is unsound. The statute disqualifies both husband and wife. The disqualification goes to the witness, not the subject-matter of the testimony. However public the communication may be, and however numerous the hearers, husband and wife cannot be heard in court concerning it. (The State v. Buffington, 20 Kan. 599.)
Complaint is made that the trial court permitted the plaintiff below to testify that she entertained a strong affection for her husband. This was no more than the fortifying of a presumption. The proof was unnecessary, but its admission was not error. In Bailey v. Bailey, 94 Iowa, 598, 63 N. W. 341 it is said : ‘‘ The state of her mind and the ardor of her love are not material except upon the question of damages. The lawT indulges a presumption, no doubt, that the husband had affection for his wife, and it rests with the defense to prove that he did not have.”
■ The sixth instruction to the jury by the court was erroneous. It reads :
“ I instruct you, gentlemen of the jury, that a parent is not liable in damages to his son’s wife for ad vising tlie son to separate from his wife, if such advice be prompted by the proper parental motives'for his son’s welfare and happiness, instead of malice ; but you are further instructed that such advice will be malicious toward the son’s wife, and no protection to the parent, unless the wife was guilty of acts which could be charged as grounds of divorce against her.”
This instruction took from the consideration of the jury the question of malice unless the wife was guilty of acts which could be charged as grounds of divorce against her. This rule is too harsh. Suppose a case where a father, by his advice and counsel, induced his married daughter to leave a worthless husband and return to the parental roof. It might be that the husband had wilfully deserted his wife for eleven months, yet, under the law laid down by the trial court, the action of the father would be malicious and recovery of damages could be had against him-by the husband; for to constitute a ground of divorce the abandonment must have continued for one year. Again, ‘ ‘ the conviction of a felony and imprisonment in the penitentiary therefor subsequent to the marriage ” is ground for a divorce. Under the law of said instruction, inducements held out by the father, causing his daughter to desert a husband convicted of a felony, but before imprisonment in the penitentiary therefor, would be malicious and actionable. The husband might be guilty of such neglect of his marital duties as not to amount in law to gross neglect, which is one of the grounds for divorce, yet there might be many cases of such dereliction which would justify a parent in advising his daughter to submit no longer to indignities falling short of furnishing grounds for divorce. In actions of this kind the question must be whether the father was moved by malice or by proper parental motives for the welfare and happiness of his child.. He may have erred in his advice as to the best course to be taken in dealing with so difficult a question, but he is entitled in every case to have a jury pass upon the integrity of his intentions and determine the existence of bad motives. In Tucker v. Tucker, 74 Miss. 93, 32 L. R. A. 623, 19 South 955, it is said:
“In every §uit of this character, the principal inquiry is, From what motive did the father act? Was it malicious, or was it inspired by a proper parental regard for the welfare and happiness of his child? The instinct and conscience unite to impose upon every parent the duty of watching over, caring for and counseling and advising the child at every period of life, upon marriage and after marriage, whenever the necessities of the child’s situation require or justify such action on the parent’s part. The reciprocal obligations of parent and child last through life, and the duty of discharging these divinely implanted obligations is not and cannot be destroyed by the child’s marriage. Multiplied instances will occur to the mind in which a failure of a father to speak and to act would be regarded with horror. A daughter who has recklessly contracted an undesirable marriage with a man utterly unworthy .to be the husband of a virtuous woman, against the wish and over the vigorous protest of the father, and who has, by such ill-starred union, been brought to wretchedness and humiliation and want of the ordinary comforts of life, may surely be advised, counseled and cared for in the parental home, even against the will and expressed wish of the unfaithful husband.’’
By the instruction given, there being no grounds of divorce shown to exist in favor of the husband against the wife, the jury were told that the action of the-father in advising the son to leave her was malicious, and no discretion as to the existence of malice was left to the jury after they had found that the defend ant below had used language toward his son tending to induce him to leave the defendant in error. Malice cannot be inferred from the fact that no ground for divorce existed. The father stands in a very different relation toward his married son or daughter than a stranger would occupy toward the same persons. Natural affection would imply that the advice and counsel extended to them were prompted by good motives, and unworthy objects cannot be presumed. They ought positively to be shown or necessarily deduced from the facts and circumstances detailed.(Gernerd v. Gernerd, 185 Pa. St. 233, 39 Atl. 84.) In Reed v. Reed, 6 Ind. App. 317, 33 N. E. 638, it is said :
“When trouble and disagreements arise between the married pair, the most natural promptings of the child direct it to find solace and' advice under the parental roof. All legitimate presumptions in such cases must be that the parent will act only for the best interests of the child. The law recognizes the right of the parent in such cases to advise the son or daughter; and when such advice is given in good faith, and results in a separation; the act does not give the injured party a right of action. In such a case the motives of the parent are presumed good until the contrary is made to appear. These rules have generally been applied in cases where the suit was brought by the husband for the alienation of his wife; and we see no reason why they should not, with proper modification, prevail where the wife is the plaintiff/'
The instruction above set out was clearly erroneous, and for that reason the judgment of the court below is reversed, and a new trial ordered.
Doster, C. J., and Johnston, J., concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The case is presented to us upon the pleadings, conclusions of fact, and the decree. No evidence is jireserved in the record. The plaintiff in error earnestly contends that the action was barred by the statute of limitations. We cannot concur in this claim. In the first conclusion of fact the court found that Samuel E. Davidson, at the time of the rendition of the judgment, in October, 1879, was not of sound mind and memory, and was incapable of understanding or comprehending his rights and duties in said action or his relations thereto, and that the judgment first obtained by Timmons was afterward vacated and a new and different judgment rendered in the cause after Davidson had been sent to the insane asylum, and without notice to him or any one representing him.
The averment in the petition of plaintiff below that he employed counsel to protect and guard his interests and to procure a vacation of the judgment is not a direct negation of the conclusions of fact found as above. At’the time the judgment was rendered Davidson was in a demented condition ; and this fact being established, his disordered mental state was presumed to continue. A judgment confessed by an insane person may be set aside. (Crawford v. Thompson, 161 Ill. 161, 43 N. E. 617.) Instead of vacating the judgment, the attorney Clark, in October, 1881, obtained a nunc pro tunc order in the case modifying the same, which order contained a judgment in his (Clark’s) favor for $360 against Davidson. At the time this order was made Davidson was confined in the insane asylum. ' The sections of the statute applicable to the case read :
"Proceedings to vacate or modify a judgment or order for the causes mentioned in subdivisions 4, 5 and 7 of section 568 (the next preceding section) must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, or person of unsound mind, and then within two years after the removal of such disability.” (Gen. Stat. 1897, ch. 95, § 602; Gen. Stat. 1889, ¶ 4676.)
"Any person entitled to bring an action for the recovery of real property, who may be under any legal disability when the cause of action accrues, may bring his action within two years after the disability is removed.” (Gen. Stat. 1897, ch. 95, § 11; Gen. Stat. 1889, ¶ 4094.)
It appears that from October, 1879, until July, 1893, the plaintiff below was of unsound mind and incapable of managing his own affairs. This action was commenced in the district court September 6, 1894,.less than two years after his disability was removed. The plaintiff in error contends that the period of Davidson’s disability should commence in July, 1881, from the date he was adjudged by the probate court to be insane. .This adjudication, however, was only better evidence of insanity, the district court having found that Davidson was incapable of managing his own affairs and that he was of unsound mind at the time of ■the rendition of the judgment. Insanity frequently exists before a judicial determination of that fact has been had. The adjudication overcomes the presumption that the party is sane. It does not follow that because there is no adjudication there is no insanity. A legal disability may rest upon a person of unsound mind, although the question of his insanity may never have been the subject of judicial inquiry. Section 13, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4096), has no applicationto this case.
It is contended that, as the original judgment was rendered against Samuel E. Davidson and Sarah J. Davidson, they both must join in the action to set it aside. The question of a defect of parties plaintiff was not raised in the court below, either by demurrer or answer, and hence cannot be considered here.
(Parker v. Wiggins, 10 Kan. 420; Seip v. Tilghman, 23 id. 289.)
The court having found that the plaintiff in error, George H. Lantis, had ful-1 notice and knowledge of the facts and circumstances involved in and surrounding the obtaining of the judgments in favor of said Clark and Timmons, and of the relations of Clark to Davidson, he cannot be protected as an innocent purchaser of the property.
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal in a habeas corpus proceeding. The district court denied the writ and the petitioner appeals.
On September 24, 1947, the petitioner was convicted in the district court of Montgomery county on a charge of burglary in the second degree and also of larceny committed in connection with the burglary. By reason of three prior felony convictions the petitioner was sentenced to life imprisonment in the state penitentiary.
His application for release from confinement was based on six grounds which, in substance, were:
(1) On the trial no receipt of the articles alleged to have been stolen was introduced in evidence and a positive identification of the property alleged to have been stolen is required.
(2) The sentence imposed was unlawful and void. It was inhuman and not in accordance with the provisions of G. S. 1947 Supp. 21-107a.
(3) At the hour of 11:55 a. m. the jury separated for luncheon under directions to return at 1:00. When the jury returned at 1:00 and retired for further deliberations the petitioner was not present. Such procedure in his absence constituted prejudicial error.
(4) Petitioner was not given adequate time to prepare his de fense prior to trial. This constituted a denial of due process of law as guaranteed by section 10 of the bill of rights of the Kansas constitution and the fourteenth amendment of the federal constitution.
(5) The court erred in denying his motion for a new trial for the following reasons: (a) The evidence did not prove petitioner committed burglary; (6) the jurors were permitted to separate at luncheon; (c) petitioner was not present in the courtroom when the jury reconvened after luncheon. The district court denied petitioner the right to appeal to the supreme court.
(6) The information and journal entry are not in proper form in that the statute under which sentence was imposed was not recorded in the journal as required by G. S. 1947 Supp. 62-1516. The information and journal entry are void.
The record before us in the instant appeal does not contain an abstract of the evidence introduced in the criminal action. In any event if petitioner’s first alleged ground for his release were factually correct his remedy was by appeal from the judgment in the criminal case. A proceeding in habeas corpus is not a substitute for appeal.
Petitioner assigns no reason or theory for his second contention that sentence was not imposed in accordance with the provisions of G. S. 1947 Supp. 21-107a. Upon a third conviction of a felony the trial court has authority, under that statute, to sentence a defendant to be confined in the penitentiary for the period of his natural life. (Fitzgerald v. Amrine, 154 Kan. 209, 117 P. 2d 582; State v. Liebeno, 163 Kan. 421, 183 P. 2d 419.) It was wholly within the province of the legislature to determine whether the sentence provided by the statute is excessive. Courts determine the legality but not the wisdom of legislative policy.
Touching the third ground the journal recites petitioner was present when court was recessed for the noon hour. He states no reason for his failure to be present at the time specifically set for court to reconvene. The record does not disclose his absence was involuntary. The record discloses no proceedings when the jury returned at the appointed hour other than that the jury in charge of the bailiff was reconducted to the jury room for further deliberation. Assuming that was the extent of the proceedings, and none other is indicated, petitioner has failed to disclose in what manner his absence at that moment prejudiced his substantial rights in the slightest degree. Under such a record petitioner is not entitled to his release by reason of section 10 of our bill of rights or under the provisions of G. S. 1935, 62-1411. Neither would he, under such circumstances, be entitled to a reversal of a judgment of conviction on appeal. (State v. Adams, 20 Kan. 311; State v. Kendall, 56 Kan. 238, 42 Pac. 711; State v. Maxwell, 151 Kan. 951, 102 P. 2d 109, and cases therein cited; anno. 128 A. L. R. 1315-1329.)
Touching the fourth ground the record does not disclose the date of the preliminary hearing. The information was filed August 27, 1947. We are informed petitioner’s third attorney was appointed for him by the court September 16, 1947. The trial was on September 23, 1947. The journal entry shows all parties announced themselves ready for trial. Records of courts are not set aside upon the unsupported statements of a petitioner for a writ of habeas corpus. (Cochran v. Amrine, 153 Kan. 777, 113 P. 2d 1048; Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147.)
His fifth ground was that the court erred in overruling his motion for new trial. The reasons alleged have been previously stated. The first reason, as already indicated under another point, cannot be sustained as the record of the trial is not before us and the remedy to correct the error, if any, was by appeal. The second and third reasons have already been treated in part. The remaining point that the court denied petitioner’s right of appeal is not well taken. Petitioner was not in the custody of the court. There is no evidence whatever before us to support this contention.
With respect to the first portion of the sixth alleged ground for petitioner’s release it is sufficient to say G. S. 1947 Supp. 62-1516 does not require that the information state the statute on which the charge is based. Nor is that made a requirement under the provisions of G. S. 1935, 62-1010. (Lang v. Amrine, 156 Kan. 382, 133 P. 2d 128.)
G. S. 1947 Supp. 62-1516 does require, among other things, that the journal of the court disclose (a) the statute under which a defendant is charged, and (6) the statute under which sentence is imposed. The instant journal discloses (a) but not (b). Although the journal discloses petitioner’s sentence was increased by virtue of three previous felony convictions it does not comply with the other clear requirement with respect to such previous convictions.
Petitioner has not served the sentence which was imposed and is, therefore, not entitled to his release. The sentence is not void as contended by petitioner. The journal is merely incomplete and should be completed to conform to the requirements of G. S. 1947 Supp. 62-1516. The proper proceeding for the completion of a journal has been clearly outlined in Wilson v. Hudspeth, 165 Kan. 666, 668-669, 198 P. 2d 165, under a sentence which was not void but merely incomplete. The directions respecting the proper procedure there stated should be followed in this case.
It will not be necessary for petitioner to return to Montgomery county to attend the proceedings to complete the journal entry. His former counsel in the criminal case or newly appointed counsel by the district court, if petitioner has no counsel of his own choice, should be present to approve the form of the completed journal entry. When it has been completed as indicated herein the judgment of the district court denying the writ will stand affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This was an action by parents to recover damages for the wrongful death of their son, Norval Henderson, a single man, resulting from an automobile collision at night between the car in which he was a passenger and a spudder, a large piece of machinery, left standing on a highway without lights.
Defendants were Lee N. Guthrie, doing business as Guthrie Truck Line, and National Mutual Casualty Company, a corporation, his insurance carrier. During the course of the trial the action was dismissed as to Guthrie, the circumstances of which will be noted later.
This is the third appearance of this case in this court. In Henderson v. National Mutual Cas. Co., 164 Kan. 109, 187 P. 2d 508, we affirmed the ruling of the trial court in overruling defendants’ general demurrer to plaintiffs’ third amended petition. Following that decision issues were joined and a trial was had which resulted in a verdict for plaintiffs in the amount of $5,941. On defendants’ motion the trial court granted a new trial on the ground that the answers to some of the special questions returned by the jury where inconsistent with each other and with the general verdict. Plaintiffs appealed from the order granting a new trial, and defendants appealed from the order overruling their demurrer to plaintiffs’ evidence. We affirmed both rulings in Henderson v. National Mutual Cas. Co., 166 Kan. 576, 203 P. 2d 250.
Following that decision a second trial was had which resulted in a verdict for plaintiffs against the defendant insurance carrier (hereinafter referred to as National Mutual) in the amount of $10,000, being made up of $625 for medical, hospital and funeral expenses, and $9,375 for future contributions to be made by deceased for the support of plaintiffs, his parents.
The defendant, National Mutual, has appealed from the order overruling its motion for a new trial, from the judgment, and from all adverse rulings and orders made during the course of the trial, and which will be noted and discussed later in this opinion.
Both parties concede the evidence was substantially the same as at the first trial — in fact the testimony given by a number of witnesses at the first trial was read when the case was retried, and for that reason we will not unduly encumber this opinion with a detailed recital of it, but reference is made to our opinion referred to above, at 166 Kan. 576, for a summary of such evidence. In passing, we take note that one of defendant’s fifteen specifications of error is that the lower court erred in overruling its demurrer to plaintiffs’ evidence. In our decision, supra, at page 583, we held the demurrer to plaintiffs’ evidence in the first trial was properly overruled and no reason has been advanced to cause us to change that holding with respect to the lower court’s ruling in that regard in the second trial.
As before stated, National Mutual brings fifteen specifications of error for our review. Some will be discussed separately and others will be grouped and treated together.
It is vigorously urged that the court erred in overruling National Mutual’s motion to quash and its request for an opportunity to remove the case to the federal court. The circumstances giving rise to these motions were as follows:
The case went to trial on May 4, 1949, and late that afternoon counsel for plaintiffs advised the court that he had only one more witness to call and suggested that the trial be recessed until the following morning. At the same time he announced that plaintiffs dismissed as to defendant Guthrie. The trial judge then, at 4:32 p. m., adjourned court and excused the jury until nine o’clock the following morning. Thereupon followed a conference between court and counsel for both sides concerning the matter of instructions and special questions, and during this discussion counsel for National Mutual advised the court that he was refiling and requesting the court to give the same instructions and special questions that he had submitted and requested be given at the first trial.
The following morning counsel for National Mutual, appearing specially, filed a motion to quash, vacate and set aside the service of summons had on it, and all appearances made by it, on the ground that such defendant did not reside in and was not served with summons in Butler county, and that since plaintiffs did not reside in and the cause of action did not arise in Butler county, the action was improperly brought and maintained in that county. This motion was overruled. Whereupon counsel for National Mutual stated to the court:
“I want to make the record before anything further is done. There is one more matter I would like to call to the attention of the court. This case now for the first time is removable to the United States Court, and the defendant desires to exercise its right and privilege to have it removed. Obviously, we haven’t had time to prepare the necessary petition for removal. I think we are entitled to an opportunity to do that.”
After some discussion between court and counsel this motion for removal was overruled and the trial was resumed. At the conclusion of plaintiff’s evidence the demurrer thereto was overruled.
The only evidence offered by National Mutual was the testimony of one witness, a garage man, concerning automobile headlights, which for our purposes is immaterial and will not be noted.
The jury was instructed, arguments were made by counsel and the jury returned a verdict in favor of plaintiffs and answered special questions, which will be dealt with later.
Defendant National Mutual’s argument in behalf of its motion to quash and vacate service of summons had on it and all appearances made by it, and its motion for leave to remove the case to the federal court, is this:
Since plaintiffs were residents of Greenwood county, where the cause of action arose, and Guthrie was a resident of Butler county, where he was served and where the action was brought, and National Mutual, being an Oklahoma corporation and being served only through the commissioner of insurance, when the action was dismissed as to Guthrie, National Mutual thus was the only defendant remaining in the case, and since the action could not in the first instance have been maintained only against National Mutual in Butler county, but would have had to be brought in the county in which it resides or may be summoned (G. S. 1935, 60-509), or in the county in which the cause of action arose or in which plaintiffs may reside (G. S. 1935, 40-218), therefore when the action was dismissed against Guthrie it was no longer maintainable against National Mutual in Butler county. It is conceded that the action was properly brought in Butler county in the first instance because Guthrie was joined as a defendant, and counsel concedes that the filing of a motion to quash so long as Guthrie remained in the case would have been a useless gesture, but it is argued that upon the dismissal as to him the motion to quash service and all appearances should have been sustained, and, failing in that, National Mutual was entitled to have the case removed to the federal court, that being the first instance when the requisites to federal jurisdiction came into being, and counsel argues that on the face of the thing it is obvious that during the overnight adjournment of court he had no-opportunity to prepare the necessary formal papers for removal.
On the other hand, counsel for plaintiffs contends that the filing and submission of requested instructions and special questions by opposing counsel immediately following the dismissal as to Guthrie, and prior to the motion to quash and vacate and to remove the cause, constituted a waiver of such right, if one in fact ever existed, and a number of authorities to this effect are cited in support thereof. Our attention is also called to the federal statute providing for removal of causes in effect at the time of trial.
While there is considerable authority to the effect that National Mutual can be said to have waived any objection as to venue and jurisdiction of the district court of Butler county on account of its many appearances for all purposes, and counsel’s submission of requested instructions and special questions after the dismissal as to Guthrie and prior to its motion now under consideration (see Olsen v. Lambert, 158 Kan. 94, 145 P. 2d 159), we prefer to uphold the lower court’s denial of the motion to quash and vacate on a different but related basis. Guthrie resided in and service was had upon him in Butler county, and even though plaintiffs lived in Greenwood county, where the cause of action arose, and National Mutual is a foreign corporation, the action was therefore properly brought against both Guthrie and National Mutual in Butler county. Guthrie was a necessary and not a mere nominal party defendant. This is not a case where an unwilling adversary is brought into court by joining some mere nominal party defendant upon whom personal service can be had in that jurisdiction when in fact a plaintiff has no bona fide cause of action against such de fendant so nominally joined. This case had been tried once before and two appeals to this court had already been taken. It is true that National Mutual had not previously objected to the jurisdiction for the simple reason that such objection would have availed nothing, yet we cannot say from the record before us that the action was not maintainable against the remaining defendant, National Mutual, after the dismissal as to Guthrie.
What about the application to remove the action to the federal court? Counsel for National Mutual argues that his application for removal was made immediately upon the case first becoming removable — that is, after the dismissal as to Guthrie. Counsel for plaintiffs argues that National Mutual submitted itself to the jurisdiction of the state court after the cause became removable by filing requests for instructions and special questions and by presenting its motion to quash and thus waived any rights to remove that it may have had, and that if any right of removal ever existed it has been lost by failure at any time to file a petition for removal. No such petition has ever been filed.
The trial was had on May 4 and 5, 1949. The federal statute providing for removal of causes from a state court to the federal court, in effect on those dates, is as follows:
“(a) A' defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.
“(6) The petition for removal of a civil action or proceeding may be filed within twenty days after commencement of the action or service of process, whichever is later.
“(d) Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed.
“ (e) Upon the filing of such petition and bond the defendant or defendants shall give writen notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further therein unless the case is remanded.” (28 U. S. C. A., § 1446.)
This statute became effective September 1, 1948, and was in effect until May 24, 1949, when subsection (b) thereof was amended to read as follows:
“(b) The petition for removal of a civil action or proceeding shall be filed within twenty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within twenty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
“If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, or other paper from which it may first be ascertained that the case is one which is or has become removable.” (§ 83, P. L. 72, 81st Congress, First Session.)
It will be seen that under the statute in force on May 4, 1949, the petition for removal of a civil action to a federal court must be filed within twenty days after commencement of the action or service of process, whichever is later. This action was commenced and service of process was had on National Mutual long prior to May 4, 1949, the date when counsel concedes the action first became removable due to the dismissal as to Guthrie. The amendment, which became effective May 24, 1949, provided in substance that if the action was not originally removable then a petition for removal might be filed within twenty days from the date on which it is first ascertained to be removable. Notwithstanding the fact that a petition for removal prior to the dismissal as to Guthrie would have been unavailing, this simple fact stands out, and that is, under the statute as it existed on May 4 and 5, 1949, National Mutual was without remedy for the reason that under the circumstances disclosed by this record it was too late in applying for such removal. It is true that in the interval between September 1, 1948, and May 24, 1949, a litigant under some circumstances could be said to be in a sort of “void,” but to cure such defect was undoubtedly the purpose of the amendment which became effective May 24, 1949, and it was so held in Cobleigh v. Epping Brick Co. (N. H., August 16, 1949), 85 F. Supp. 862. It was not until the amendment became effective that a defendant had the right in an action not originally removable to petition for removal upon it first being ascertained that it had become removable, and as of that date the trial of this case had already been completed. The court did not err in denying National Mutual’s application for time in which to prepare the necessary papers for removal.
Complaint is made of instructions given and of special questions submitted, and the court’s refusal to give certain requested instructions and special questions. Ordinarily perhaps we would feel compelled to take up and discuss in some detail each of these complaints, but here we are constrained to say that to do so would merely unduly extend this already lengthy opinion and would add nothing to the body of our law on the subject. We have read the evidence and have carefully examined the instructions and special questions given to the jury, together with those requested by counsel and refused by the court. It is true that the instructions are quite long and somewhat repetitious in several respects, and perhaps some of them could well have been omitted, but we think they fully covered the issues involved and those points included in the requested instructions which were refused. Furthermore, several points in controversy in this respect were discussed in our opinion on the second appearance of the case in this court and require no further elaboration now. The same can be said with respect to the special questions submitted and those which were refused.
These special questions and the answers thereto returned by the jury are as follows:
“1. How fast was the car traveling in which Norval Henderson was riding at the time of the collision? A. 35 miles per hour.
“2. Was the rate of speed of the car in which Norval Henderson was riding reduced at any time immediately before the collision? A. No.
“3. Did Norval Henderson at any time before the collision make any objection or protest as to the speed or manner in which the car he was riding was being driven? If your answer is ‘yes’ answer fully. A. No.
“4. Do you find Norval Henderson was guilty of any acts of negligence? A. No.
“5. If you answer question No. 4 in the affirmative, state what those acts of negligence were. A. -.
“6. Do you find that Lee N. Guthrie was guilty of negligence? A. Yes.
“7. If you answer question 6 in the affirmative, state what those acts of negligence were. A. The defendant did not provide proper torches and flagmen according to law.
“8. If you find for the plaintiff, please state how much, if anything, you allow the plaintiffs for each of the following items:
a. Medical and hospital services, drugs and funeral expenses....... $625.00
b. Other expenses ......................................................
c. Future contributions to be made by Norval Henderson for the support of the plaintiffs..................................... 9,375.00”
National Mutual moved for judgment on answers 1, 2 and 3, for judgment notwithstanding the verdict, and moved to set aside answers 4, 6, 7 and 8c.
We will not labor the question but simply say that answers to questions 1, 2, 3, 4, 6 and 7 are supported by substantial, competent evidence and it was clearly within the province of the jury to find the facts disclosed by them. The court did not err in overruling the motions with respect to these answers.
We come now to the last complaint with reference to the alleged erroneous admission of evidence concerning the financial and physical condition of plaintiffs subsequent to their son’s death and as to the alleged excessiveness of the verdict. Under the provisions of the statute in force at the time their son was killed (G. S. 1945 Supp. 60-3203), plaintiff’s recovery is limited to the financial loss resulting to them by virtue of his death. The deceased was about twenty-two years of age and. had never been married. Following his graduation from high school he engaged in farming and doing odd jobs. The evidence showed him to be a good, clean and sober young man, a good farmer, dependable, and a hard worker. At the time of his death his mother was forty-three years old and his father sixty-five. Their only other child was a daughter. The father’s health was not good and he was unable to do heavy work. His mother underwent an operation for varicose veins about a month prior to his death, following which she was unable to do much work which required her to be on her feet. For some years prior to his death the family had lived on a rented 240 acre farm, with the deceased doing most of the heavy work. There was testimony that his services were worth $100 to $150 per month, but he was not paid anything by his parents. On a few occasions when he hired out to others the money for such services was paid directly to his father. A few months prior to his death he rented a farm which was about three-quarters of a mile from where his parents lived, following which he did all of the heavy work on both places; and there was other evidence to show that he always had the welfare of his parents in mind. About six months subsequent to his death the parents moved to another farm, the mother testifying that it was necessary to do so because her husband was unable to farm the place where they formerly resided, alone. The deceased and his father had jointly bought some farm machinery but after his death it was sold and the proceeds did not exceed the amount of the mortgage on it. The mother took employment as night operator at a telephone office at which she earned not to exceed $10 per week. There was other testimony tending to show their reduced financial circumstances subsequent to their son’s death. Some of this testimony was objected to on the ground that evidence of subsequent misfortunes would not be admissible and that damages were fixed as of the date of death. It is conceded that in general that is a correct statement of the law, but we do not agree with counsel that the evidence here was inadmissible. In order to recover more than mere nominal damages it was incumbent upon the parents to prove a reasonable expectation of support by their son and the extent of it. They introduced evidence concerning what he had done for them and we think evidence of the changed conditions and their changed circumstances, directly produced and brought about on account of his death, was therefore admissible. In fact, evidence of such changed circumstances was one of the best methods by which to prove their pecuniary loss because of his death. While the mother was testifying some mention was made of the fact that she had just received a message telling of her father’s death. Such fact was of course irrelevant to the issues and had no place in this lawsuit, but we cannot say that such gratuitous statement, made in the presence of the jury, vitiated the proceedings and the verdict. This lawsuit was hotly contested from start to finish and it is seldom, if ever, that in such a situation some remark or bit of improper evidence does not creep into the trial, but on appeal we are to disregard mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the parties (G. S. 1935, 60-3317), and from a careful perusal of this record we cannot say that any reversible error appears.
Was this verdict for $10,000 so excessive as to “shock the conscience” of this court and thus to require a remittitur? As heretofore stated, it was made up of $625 for medical, hospital and funeral expenses, and $9,375 for future contributions to be made by the deceased for the support of his parents. The evidence concerning what the deceased had done in the past and what might reasonably, under the circumstances, be expected of him in the future has already been narrated. We are cited many decisions by counsel for both sides on the question of excessive verdicts. Each has been noted, together with the facts and circumstances of the particular case. Many verdicts have “shocked the conscience” of this court so that a remittitur or reversal has been ordered, but there is no uniform yardstick or hard and fast rule by which the alleged ex-cessiveness of a verdict can be measured. We find nothing here to indicate this verdict was returned under the influence of passion and prejudice, in which event we would be compelled to order a new trial rather than a remittitur. No useful purpose would be served by a detailed discussion of the facts of other cases dealing with this question. Each arose out of and depended upon its particular circumstances. Here the jury heard the testimony and observed the witnesses, including the mother of deceased. In the recent case of Harral v. Kent Corporation, 168 Kan. 322, 212 P. 2d 356, we quoted approvingly from Rosson v. Wichita Transportation Corp., 167 Kan. 24, 204 P. 2d 591, where it was said:
“In order to hold this verdict excessive we would have to substitute our judgment for that of the jury and the trial court and under the facts and circumstances of this case we do not feel compelled to do so.”
And so here. We are of the opinion that under all the facts and circumstances of this case the verdict was not excessive and the lower court did not err in rendering judgment thereon.
In conclusion we wish to state that we have given careful consideration to every contention raised but are unable, from the record before us, to find anything which would require a reversal of this case. The judgment of the lower court is therefore affirmed. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
Samantha A. Adams sued the Union Pacific Eailway Company in the district court of Douglas county, to recover for injuries received by her, by being thrown from a spring wagon that was struck by a locomotive of a passenger train operated by defendant on its railroad. It appears that on the 9th day of October, 1880, the plaintiff, in company with Martin Adams, his wife and two daughters, started from the city of Lawrence to go to the home of Martin Adams, in Jefferson county. The team and spring wagon in which they were riding, was driven and owned by Mr. Adams, who, with his wife, sat in the front seat of the wagon, and the plaintiff and the two daughters of Mr. Adams occupied the hind seat. They traveled in a northerly direction near to and east of the defendant’s railroad for a distance of two miles, where they intersected an east-and-west road running at right angles with the railroad, which at this point runs nearly north and south. The railroad crossing is about five hundred feet west of this point. Upon the north side of the east-and-west road, where the turn was made, to within eighteen feet of the railroad crossing, there is a high untrimmed hedge fence, which at that time was in full leaf, and to some extent was interlaced with weeds and grass. The plaintiff and her party turned and passed west over this road, driving along at a jog trot, and just as the horses reached the railroad track it was discovered that the passenger train of the defendant was coming down upon them from the north at a rapid rate, when Mr. Adams, the driver, whipped up the horses and endeavored to cross in advance of the train, but the hind end of the wagon was struck by the locomotive, tipping it over, throwing the plaintiff upon the ground, dislocating her shoulder, and fracturing her arm. The plaintiff alleged in her petition that she was injured on account of the negligence of the employés of the defendant on the train, in failing to sound the whistle eighty rods north of the crossing, as required by the statute; and she also stated that the railroad company had failed to place a notice at this point indicating the location of the railroad crossing.
On the part of the defendant, it was alleged that the plaintiff's injuries resulted solely from her own negligence and that of Martin Adams, with whom she was riding at the time of the collision. Upon the trial, and after the plaintiff had offered her testimony and rested, a demurrer to her evidence was interposed and filed by the defendant, on the ground that no cause of action had been proven by her. The testimony offered by the plaintiff tended to show, and upon this demurrer it must be held to have established, that the whistle of the engine was not sounded eighty rods away from the crossing as required, nor that any signal was given by those in charge of the train until the wagon was discovered by them upon the track, which was almost simultaneous with the collision. The negligence of the defendant, then, must be regarded as proved. The contention of the defendant, however, is that the plaintiff's testimony discloses that her own want of ordinary caution and care directly contributed to the injury. The negligence of the defendant in such a case is not always sufficient to warrant a recovery, and while contributory negligence on the part of the plaintiff is a matter of defense, still if the plaintiff's evidence shows that her injury was the proximate result of her own negligence, she has failed to make out a prima facie case, and notwithstanding the negligence of the defendant, the-demurrer to the evidence should be sustained. (Gibson v. City of Wyandotte, 20 Kas. 158.)
It is now well settled in this state and elsewhere, in cases where the plaintiff seeks to recover for injuries on the ground of defendant's negligence, that if the ordinary negligence of the plaintiff directly or proximately contributed to his injury, he cannot recover unless the injury was intentionally and wantonly caused by the defendant. (Gibson v. City of Wyandotte, supra; Jackson v. K. C. L. & S. K Rld. Co., 31 Kas. 761; Mason v. Mo. Pac. Rly. Co., 27 id. 83; Corlett v. City of Leaven worth, 27 id. 673; Mo. Pac. Rly. Co. v. Haley, 25 id. 35; C. B. U. P. Rld. Co. v. Henigh, 23 id. 347; Williams v. A. T. & S. F. Rld. Co., 22 id. 117; Artman v. K. C. Rly. Co., 22 id. 296; K. P. Rly. Co. v. Pointer, 14 id. 37; L. L. & G. Rld. Co. v. Rice, 10 id. 426.)
It is equally well settled that it is the duty of a traveler upon a highway about to cross a railroad track, to make a vigilant use of his senses in order to ascertain whether there is a present danger in crossing. This is required not alone for his own safety, but also for the protection of the lives of the passengers upon the railway trains. The traveler who fails to take this precaution is not using ordinary care. Plow is it in this case? An examination of the plaintiff’s evidence we think shows that the plaintiff and her driver were negligent. It appears that the parties drove up in a two-horse wagon, upon a trot, in plain view of the railroad track, without stopping to listen or look for the appi’oach of a train, or taking any precaution whatsoever to learn whether there was danger in then attempting to cross. Both the plaintiff and Mr. Adams, who was driving the team, were familiar with the highway, well acquainted with the crossing, and with the fact that trains were frequently run over the road.
Martin Adams testified as follows:
“ Ques.: Every one of you knew where the railroad was? Ans.: Yes, sir.
“Q. It was right in plain sight of'you when you were coming through that sandy road and cut? A. I saw where it was ahead of me.
“Q,. You could see the railroad? A. Of course; it was elevated.
“Q. Were you thinking of the train at all? A. I don’t recollect that I was.
“Q. You never thought of the possibility of a train until your horses’ heads were on the track? A. Don’t think I did.
“ Q,. Weren’t you thinking about going on the track ? A. I don’t recollect of thinking anything particular about the train coming.
“ Q,. None of you were thinking about the train? A. Not that I know of.
“ Q,. I will ask you now the question: did you look or listen for the train at all? A. Not that I know of.”
The plaintiff Samantha Adams, testified:
“Ques.: You knew the railroad was there? Ans.: Yes, sir, we knew the railroad was there.
“Q,. You were not thinking about the train at all? A. No, sir, I was not.
“Q,. You did not hear the cars coming? A. No, sir.
“Q,. You did not hear anything of the train? A. No, sir, not anything.
“Q,. Never thought of it? A. No, not particularly.
“Q,. Did you look for the train in any way? A. Well, we could not have seen it if we had looked right there. But we did not look, though. I did not look.
“Q,. Did you listen for it? A. No, sir.”
Counsel say that it would have been unavailing to have looked for the train, as the bank and hedge upon the north side of the road crossing the track obstructed the view so that a train approaching from the north could not have been seen by the plaintiff. From the plaintiff’s testimony we observe, as has been stated before, that the distance from the corner where the party turned west to the railroad crossing was about five hundred feet. About half way from the corner to this crossing is a cut in the road which extends to within about fifty feet of the railroad, the bank of which, together with the hedge, which was then covered with foliage, made it very difficult for parties passing along to have seen the coming train. It appears, however, from the testimony of several of plaintiff’s witnesses, that there were places in the hedge through which the train might have been seen, and outside of this cut in the road it might have been easily seen by standing up in the wagon,-and the view of the track was unobstructed from the point where the hedge terminated, which was eighteen feet east of the track. But if the obstruction had been such as to prevent plaintiff from seeing the track or train, then in the exercise of ordinary care she should have listened for the train, and it appears that the train could have been heard for some distance by giving attention, and listening for a train before going upon the track. It is true that the wind was blowing in nearly an opposite direction from which the train was coming, but several of plaintiff's witnesses heard the train, and we have no doubt that if the plaintiff or Adams had given heed and listened, they would have discovered its approach and could thus have avoided the accident. In this case, neither the plaintiff nor the driver either looked or listened, although their attention was called to the necessity of caution by seeing in advance of them the track of the railroad.
It has been said that—
“The track itself is a warning of danger, and I think it must be laid down'as a principle of law, that persons about to cross a railroad track are bound to recognize the danger, and to make use of the sense of hearing • as well as of sight, and if either cannot be rendered available, the obligation to use the other is the stronger, to ascertain before attempting to cross it, whether a train is in dangerous proximity; and if they neglect to do this, but venture blindly upon the track, without any effort to ascertain whether a train is approaching, it must be at their own risk. Such conduct is, of itself, negligence, and should be so pronounced by the courts as a matter of law.” (Railroad Co. v. Miller, 25 Mich. 290.)
The supreme court of the United States, in speaking of the precautions and care that should be taken by persons about to cross a railroad, and the result of their failure to use such care, said:
“The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employés in these particulars, was no excuse for negligence on her part. She was bound to listen and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others.” (Railroad v. Houston, 95 U. S. 697. See also Henze v. Railway Co., 71 Mo. 636; Payne v. Railway Co., 39 Iowa, 522; Railroad Co. v. Beale, 75 Pa. St. 504; Schaefert v. C. M. & St. P. Rld. Co., 62 Iowa, 624; McCall v. Railroad Co., 54 N. Y. 642; Zimmerman v. H. & St. J. Rld. Co., 71 Mo. 476; Pennsylvania Rld. Co., v. Righter, 42 N. J. 180; note, and cases cited, on page 226, 2 Am. & Eng. Rld. Cases; 1 Thompson on Negligence, pp. 424, 426, and cases cited.)
Many other authorities like unto these could be cited respecting the care which should be exercised by persons about to cross a railroad track, but a sufficient number have been referred to, to show what the current and weight of authority is; and within the rules there laid down we are constrained to hold that the evidence of the plaintiff showed a plain case of contributory negligence, both upon the part of the plaintiff and that of the driver, Martin Adams.
We think the demurrer interposed by the defendant to plaintiffs evidence should have been sustained. The judgment of the district court will therefore be reversed, and the cause remanded with instructions to sustain the demurrer to plaintiffs evidence.
All the Justices concurring. | [
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The opinion of the court was delivered by
• VALENTINE, J.:
This was a criminal prosecution under § 13 of the prohibitory liquor law of 1881, in which prosecution the defendant, James Hughes, was charged with keeping and maintaining a common nuisance, by keeping for sale and selling intoxicating liquors at a certain place in the city of Solomon, Kansas, in violation of the said prohibitory liquor law. The case was tried before the court and a jury, and the jury found the defendant guilty as charged. He was then sentenced to pay a fine of $250 and the costs of the prosecution, to stand committed to the county jail until such fine and costs were paid, and to give a bond in the sum of $1,000, with good and sufficient sureties, for his good behavior, etc., for two years, and to stand committed to the county jail until such bond should be given. The defendant now appeals to this court. His principal ground for reversal is, that the trial court itself in effect decided that the defendant’s principal witnesses in the case had sworn falsely, while the principal witness against him had sworn truthfully. The facts with reference to this matter are substantially as follows : The principal witness for the state was George R. Kestetter, who testified to facts which, if true, tended very strongly to show that the defendant was guilty. On the cross-examination of this witness by the defendant, the proper questions were asked for the purpose of laying the foundation for impeaching his testimony by other witnesses, to be afterward called and examined. Afterward such witnesses, to wit, George W. Joles, ~W. P. Dougherty, aud R. B. Lyda, were called and examined as such impeaching witnesses. Joles testified, among other things, that in a conversation with Kestetter, Kestetter said to him as follows:
“ If defendant, Hughes, would pay him $50, he would run away and not be here to testify against him; that for that amount he would skip out, and all the sheriffs and deputy sheriffs in the state could not catch him.”
Dougherty testified, among other things, that Kestetter in a conversation with him, stated as follows:
“That if defendant, Hughes, would give him $50, he would skip out, and not be here to swear against him, and that Hughes had better put up, or he, Kestetter, would stick him.”
For the purposes of this case, it is not necessary to give any of the testimony of Lyda. Afterward, Kestetter was again introduced as a witness by the state, and in accordance with his previous testimony and denials, he then testified that the statements made by Joles and Dougherty were untrue; that he did not offer to “run away,” or to “skip out,” or to absent himself from the court for $50 or for any other sum, blit on the contrary, that both Joles and Dougherty attempted to bribe him by offering to pay him the sum of $125 if he would, so abseut himself from the court that his testimony could not be used against the defendant. Two other witnesses were also introduced by the state, who testified that they heard a part of the conversation between Kestetter and Joles; and their testimony tended to corroborate that of Kestetter. The defendant again introduced Joles and Dougherty as witnesses, and each testified that he had never had any such conversation with Kestetter as had been testified to. While Dougherty was still on the stand, and in the presence and hearing of the jury, the court ordered that the prosecutor should immediately file criminal informations against both Joles and Dough-erty, charging them with attempting to bribe a witness, and to see that they were each bound over to appear at the next term of the district court to answer to such charge; and refused to order that the prosecutor should file any information against Kestetter for attempting to be bribed as a witness. The court by this action in effect decided that Kestetter was a truthful witness; that his statements were true; and that Joles and Dougherty were untruthful witnesses, and that their statements were false.
The question now presented is, whether this action on the part of the court constitutes material error or not. We must answer this question in the affirmative. The question as to whether the defendant was guilty or not, was not at all clear under the evidence. Much of the evidence, indeed, tended to prove that he was not guilty; and even with this decision on the part of the court as to the credibility of the witnesses and the weight of their testimony, the jury were ten hours deliberating upon their verdict before they arrived at the conclusion that the defendant was guilty. It may be that except for this decision on the part of the court, the jury would not have found the defendant guilty at all.
The claim on the part of the state that this decision on the part of the court did not constitute any material error, is twofold : First, that the whole thing was immaterial; and, second, that the court afterward rendered this decision harmless by giving the following instruction to the jury, to wit:
• “ I further instruct you that the defendant ought not to be prejudiced by the supposed misconduct of any witness or witnesses who testified for or against him, but he should be tried alone upon the evidence and the law in the case.”
We think this claim on the part of the state is insufficient; for, even if the foregoing impeaching testimony was wholly incompetent in the case, still it was introduced in the case without objection, and the action of the court in deciding who told the truth and who did not tell the truth was highly prejudicial to the interests of the defendant, and the subsequent instruction given by the court to the jury would hardly render the previous action of the court harmless. Kestetter, it must be remembered, was one of the principal witnesses, if not the principal witness, against the defendant upon the merits of the case, and if he told the truth, there was sufficient evidence to sustain a conviction against the defendant; and the court in effect said he was a truthful witness. But such impeaching testimony was not incompetent. The defendant had a right to show the corrupt leanings and tendencies of the witness Kestetter with regard to the subject-matter of this particular case, after laying the proper foundation for the same as he did. ( Chamberlayne’s Best’s Principles of Evidence, § 644, p. 635; 1 Greenl. Ev., §459; Wharton’s Crim. Ev., §§476,477,488.) And when this was done, then the state had the right, within proper limits, to impeach the impeaching witnesses by introducing the testimony of Kestetter and the other witnesses, as it did, to show that the impeaching witnesses were unworthy of belief with regard to the particular matter concerning which they testified. All the foregoing testimony, however, was introduced without objection, and we cannot therefore treat it as wrongfully in the case, or as wholly immaterial in the case.
We think the aforesaid action on the part of the court constituted material error; and for such error the judgment of the court beloAv will be reversed, and the cause remanded for a new trial.
HORTON, C. J., concurring.
JOHNSTON, J., not sitting in the case. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
The only question presented for our decision is, whether the fence, the value of which is sued for in this action, was owned by the plaintiff at the time of its removal by Peter Anderson and August Carlson. The fence was built by the defendant, Charles S. Anderson, upon the -plaintiff’s land when it was owned by S. O. Thacher, under a parol permission given by Thacher that the fence might be built a few feet over upon Thacher’s land as a protection to a hedge which Anderson was about to plant on the dividing line between his own land and that of Thacher, and, that it might be removed by Anderson whenever he desired. It remained upon the land about five years before -its removal by the defendants. About two years after it was built, Thacher conveyed the land to one Circle, who in about eighteen months afterward conveyed to Mechem, who on May 1,1882, conveyed to the plaintiff. In these conveyances no reservation was made of the fence,, nor had any of the purchasers holding under Thacher any notice of the arrangement between Thacher and Anderson, unless the location and use to which the fence wás put .imparted notice of such arrangement.
Plaintiff claims that the fence was a fixture attached to the soil, which had become a part of the realty and passed with the grant of the land to him, be being a bona fide purchaser without notice of the arrangement between Thacher and Anderson with respect to the erection and removal of the fence.
On the part of the defendants it is claimed that, as between Thacher and Anderson, the fence was personal property, and that its character was not changed by the subsequent conveyance of the land by Thacher, and did not pass as an incident of the land by the conveyance to the subsequent grantees. It is further claimed that the plaintiff was not a purchaser without notice; that the location of the fence and its use were sufficient notice that the defendants claimed an interest in it, and that that interest could have been ascertained by the inquiries that plaintiff was in law bound to make.
■We cannot agree with the claim made by the defendants. The general rule of law is, that whatever is once actually annexed to the freehold becomes a part of it, and cannot afterward be removed except with the consent of the land-owner. In this case the fence was a substantial structure made of boards, and was actually annexed to the soil. All improvements of a permanent character, such as fences and buildings that are firmly attached to'the soil, are generally to be regar-ded as permanent fixtures, and. are presumed to belong to the owner of the soil to which they are attached. Prima fade, then, the fence was real estate belonging to the owner of the land on which it stood, and if the plaintiff had no knowledge or notice of the arrangement between Thacher and Anderson, he had a right to presume that the fence was intended as a permanent improvement, the title to which was in the owner of the land, and that a deed of the land from Mechem, his grantor, would carry with it the fence in question.
To the general rule there are exceptions. The agreement of the parties may, to a certain extent, supersede the general rule of law. An exception to the rule may also arise by reason of the relations that the parties to a controversy over the removal of fixtures sustain toward each other, and articles attached to the freehold which are considered as removable by one party, may be regarded as permanent fixtures with respect to another. There is considerable disagreement in the decisions of the courts, with respect to how far the doctrine of modifying the general law of fixtures, by agreement, may be carried. Some of the cases would seem to go to the extent of holding that parties may, by agreement, change the nature of property and make that which would otherwise be a part of the realty, personal property, and that a purchaser of the realty would be bound by such agreement, even though he had no notice of the same. Others of them are to the effect that the distinctions between realty and personalty cannot be changed by the mere agreement of the parties, and that a purchaser of real estate, in the absence of notice to the contrary, has a right to suppose that he takes with it every appurtenance which, under the general rules of law, passes with the grant of land, and that he cannot be affected by any secret claim or private agreement of which he has had no notice. It may be conceded that a party who, under a parol permission or license, places upon the land of another a permanent improvement, with the right, when he desires, to enter- and take it therefrom, may exercise that right at any time before the permission or license is revoked by the landowner, and probably he has the right to enter to remove the fixture within a reasonable time after the revocation; and it would seem that any subsequent vendee who purchased the land with notice of such parol agreement or license, and of the interest of the parties in the fixture, would be bound by such agreement. But we think this doctrine cannot be carried to the extent of binding or affecting injuriously third parties to whom the land has been conveyed without reservation, and to whose notice the parol license had not been brought.
While the legal effect of attaching a permanent improvement like a fence to the land of another, may be controlled by an agreement as between themselves and those who have knowledge of such agreement, yet we think the weight of authority is that such an annexation to the land becomes a fixture which cannot be held or removed as against a subsequent vendee who had no notice of the license or agreement under which it was annexed to the land. In such case, the remedy of the licensee is against the licenser for the breach of the executory agreement, by virtue of which the annexation was made. The policy of the law in our state is that every-' thing appertaining to or affecting the title of real estate should appear in the public records. A purchaser of real estate has a right to suppose that upon an inspection of the records he will be able to ascertain the status of the title, and whether there are any existing incumbrances or claims in favor of third parties existing against it. Not so, however, if the theory contended for by defendants obtains.
As has been said, this doctrine—
“Would always leave the purchaser in doubt as to the true state of the title to the property which he was purchasing, or the nature and extent of the claims which third persons might have upon it. The town record would give him no light upon the subject. The principal value of the property might be in the buildings, and the purchase made solely with reference to them, and yet, after the bargain was completed and the consideration paid,'he might find that a third party owned the buildings, with the right to have them remain or to remove them.” (Powers v. Dennison, 30 Vt. 752.)
The court in the case cited in passing upon a question very similar to the one presented in this case, that is, where one had erected a building for his own use, upon the land of another, by virtue of a parol license from the owner, with the understanding that the licensee might remove it upon notice from the land-owner, and the land was subsequently conveyed, held that—
“ Whatever may be the rights or the nature of the interest in respect to. such property as between the original parties to the contract, it is sufficient to say that it seems to be well settled that a building erected as the one in question was, would become a fixture and a part of the freehold, so as to pass by the deed of the owner of the land to a bona fide purchaser without notice.”
In this case, Anderson voluntarily placed his fence in such a situation as to lead those who had no knowledge or notice of his arrangement with Thacher, to believe that it belonged to him on whose land it was situate. If he desired to protect his fence from the effect of a conveyance of the land by Thacher, he might have reduced the agreement between them to writing, and made it a matter of record. This he neglected to do, and if any one is to suffer loss by reason thereof, it should be the one who was negligent, rather than a subsequent vendee, who upon an examination of the records found no record and had no notice of this claim. In support of the views herein expressed, we cite the following authorities: Prince v. Case, 10 Conn. 375; Powers v. Dennison, 30 Vt. 752; Wescott v. Delano, 20 Wis. 541; Tiedeman on Real Property, 799; Hill on Fixtures, 19; Houx v. Seat, 26 Mo. 178; Tyler on the Law of Fixtures, 672; Dostal v. McCadden, 35 Iowa, 318; Smith v. Carroll, 4 G. Greene, 146; Haven v. Emery, 33 N. H. 66; Eaves v. Estes, 10 Kas. 314.
It is claimed, however, by the defendants, that the plaintiff was not a purchaser without notice. The only facts upon which this claim is based is the location of the fence and the use for which it was intended. There would be more force in this claim if the land upon which the fence stood had been open and uninclosed when the plaintiff purchased it, but it appears that it had been inclosed by a fence before it was conveyed by Mechem to the plaintiff; the hedge had been planted and growing for four years before that time upon the" line dividing the two farms. The fence, therefore; was in the open possession of the plaintiff’s grantor, and ■ at that time the use for which Anderson originally intended it was not very apparent. We do not see anything so unusual in these facts and circumstances as to reasonably excite inquiry whether the fence belonged to another than the owner of the land. Nor do we think them sufficient to charge the plaintiff with notice of the adverse interest or title in the fence.
Entertaining these views, the judgment of the district court must be reversed, and the cause remanded with instructions to enter judgment in favor of the plaintiff for the value of the fence, which it was agreed was sixty dollars.
All the Justices concurring. | [
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The opinion of the court was delivered by
Yalentine, J.:
This was an action brought in the district court of Butler county, on July 28,1882, by William DeMoss against Charles F. Himes, Jane Himes his wife, and A. Prescott, to quiet DeMoss’s title to certain real estate owned by him, and to have a certain supposed deed and supposed mortgage thereon declared null and void. While the suit was pending in the district court, DeMoss disposed of all his interest in the property in controversy to Joseph C. Everston, and A. Prescott died; and Everston was then substituted as plaintiff in the action in the place of DeMoss, and the Central Bank of Kansas, the owner of said mortgage and the supposed successor in interest to Prescott, was substituted as a defendant in the action in the place of Prescott. All the defendants answered. The Central Bank filed an elaborate answer, setting forth facts sufficient to authorize all the proceedings afterward had, and the judgment afterward rendered by the court below in favor of the bank, provided the decision of the court below with regard to the ultimate rights of the parties is correct.
It appears that on January 1, 1881, DeMoss, being the owner of the land in controversy, gave a mortgage thereon to the Hartford Life and Annuity Insurance Company to secure the payment of $300. Subsequently, Prescott, on the faith of a supposed deed from DeMoss to Himes, and a supposed mortgage fiom Himes to himself on said land, loaned $600 thereon, and out of said loan paid off the mortgage held by the insurance company, and procured a release of record of the same. The deed from DeMoss to Himes, and the mortgage from Himes to Prescott, were forgeries. The bank became the owner of the mortgage to Prescott and of the notes secured by the same by assignment, in the regular course of business, in good faith, and before the commencement of this action. Everston obtained a warranty deed to the laud from Himes two days before the commencement of this action; and some eight months thereafter he obtained a quitclaim deed to the land from DeMoss, having at the time full notice of all the rights and claims of Prescott and his assignees in and to the land. No part of the money advanced by Prescott has ever been paid. The case was tried before the court without a jury, and the court, after making special findings of fact and conclusions of law, rendered its judgment subrogating the bank to all the rights of the insurance company, including its mortgage lien, and decreed that the bank should have a lien on the premises for the amount of the insurance company’s mortgage, which Prescott had paid, with interest from the date of such payment at 7 per cent, per annum, and ordered that the property be sold to satisfy this judgment. The only question now pre- seated to this court is, whether the bank, under the facts of this case, is entitled to be so subrogated.
It is claimed by the plaintiff, Eversión, that such subrogation cannot be had: First, for the reason that Prescott himself, if he had continued to hold the mortgage which he took from Himes, would not be entitled to such subrogation; second, that even if such right of subrogation existed in favor of Prescott, it could not be transferred in any manner to the bank, and was not so transferred either in law or equity. We shall consider these questions in their order.
I. We do not understand that the plaintiff, Eversión, claims that he is entitled to any more or greater rights in or to the property in controversy than the original plaintiff, DeMoss, would be entitled to were he still the owner of the land and the plaintiff in the action; and we think it is clear that Ever-sión has no more or greater rights than DeMoss had, but has merely succeeded to the rights of DeMoss. The only title which Everston has acquired to the property was through De-Moss, by a quitclaim deed from DeMoss and wife eight months after this action was commenced, and during the pendency of the action, of which he was bound to take notice. In the case of Smith v. Dunton, 42 Iowa, 48, it is held that “a purchaser who takes by quitclaim deed is affected by prior equities. He is not protected as a bona fide purchaser for value.” As to Us pendens, see Dresser v. Wood, 15 Kas. 344, 358.
The rule of “subrogation,” or in other words, the rule of “equitable assignment,” (3 Pomeroy’s Eq. Jur., §1211, and note'l,) has been variously defined by courts and authors. The definitions have usually been just broad enough to meet the particular case under consideration, and not sufficiently broad to cover all the cases which might properly come within the rule. Of course, subrogation is never applied in aid of a mere volunteer, nor where it will defeat equity, nor where a valid express assignment or transfer of the debt or claim has been made; but, with these exceptions, and as Mr. Sheldon, in his work on Subrogation, §1, says:
“ It is broad enough to include every instance in which one party pays a debt for which another is primarily answerable, and which in equity and good conscience should be discharged by the latter.”
Judge Story, in the case of Bright v. Boyd, 1 Story (U. S. C. Ct.), 478, 498, uses the following language:
“ There is still another broad principle of the Roman law, which is applicable to the present case. It is that where a bona fide possessor or purchaser of real estate pays money to discharge an existing incumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner, seeking to recover the estate from him.”
In the present case, DeMoss was the only person primarily liable for the payment of the insurance company’s mortgage. His land was pledged for its payment. In equity and good conscience he and he alone should have discharged it. But Prescott paid it, through an honest mistake of fact and upon the belief that such payment was necessary to protect an interest of his own in the property, and without any knowledge of the infirmity in his own mortgage, or of the infirmity in the title of Himes to the land; and it would now be inequitable and unjust to permit DeMoss to reap the benefit of Prescott’s payment, and to recover the land without repaying Prescott or liis assignee anything. The case comes squarely within the rule as laid down by Mr. Sheldon and Judge Story. No injury is done to DeMoss by requiring him to pay what he ought to pay; on the other hand, to permit him to reap the benefit of payment made by Prescott, without repaying Prescott or his assignee anything, would be a gross injustice. Of course the rule of subrogation is not to be applied in favor of one who has officiously and as a mere volunteer paid the debt of another; but Prescott, in paying off this mortgage to the insurance company, was not acting officiously, and was not a mere volunteer within the meaning of that term as applied to this class of cases, and the court below so found. Prescott paid the insurance company’s mortgage under a mistake of fact as to his rights and interest in the land; and he paid the same under a colorable obligation to do so, and for the purpose of protecting bis own supposed claim; and in such case, he is entitled to be subrogated to the rights of the insurance company. (1 Jones on Mortgages, §874.) "With respect to money advanced on defective mortgages, the doctrine is expressly laid down by Mr. Sheldon as follows:
“Where money has been loaned upon a defective mortgage for the purpose of discharging a prior valid incumbrance, and has actually been so applied, the mortgagee may be subrogated to the rights of the prior incumbrancer whom he has thus satisfied, there being no intervening incumbrances.” (Sheldon on Subrogation, § 8.)
For additional authority upon the right of subrogation, see also: Gilbert v. Gilbert, 39 Iowa, 657; Levy v. Martin, 48 Wis. 198; Snelling v. McIntyre, 6 Abbott’s New Cases, 469; Carter v. Taylor, 3 Head, 30; Muir v. Berkshire, 52 Ind. 149; Neely v. Jones, 16 W. Va. 625; same case, 37 Am. Rep. 794; Ayres v. Probasco, 14 Kas. 177, 198.
The cases are quite numerous where a party loaning money on a defective mortgage to take up a prior valid incumbrance has been subrogated to the rights of the holder of the prior incumbrance; and it seems to us that the doctrine of those cases and the rule laid down by Mr. Sheldon, as above quoted, are directly applicable to this case. ■ Prescott loaned the money on a defective mortgage to take up a prior valid incumbrance, and the money was so applied, and therefore we think he is entitled, under the equitable doctrine of subrogation, to be substituted to the rights which the insurance company had by virtue of its mortgage. We have examined all the cases cited by counsel for the plaintiff, and we do not think that any one of them conflicts with the views herein expressed. The plaintiff, however, especially relies upon the case of Watson v. Wilcox, 39 Wis. 643. In that case, Watson voluntarily loaned money to George and Margaret Harvey, and took a mortgage from them to secure the loan, all parties intending that the Harveys should, with a portion of the money loaned, pay off and discharge a prior mortgage on the property to Sarah Ann Hodson, which afterward they did. Watson got his security, all that he asked for or desired, and for the entire amount of money which he loaned, and, such security never failed, and was never impaired. Under such circumstances, it was held by the supreme court of Wisconsin that Watson could not be subrogated to the rights of Sarah Ann Hodson. Now whether this case was decided correctly or erroneously, it certainly does not conflict with the views which we have expressed in this opinion. In the present case, the security to Prescott, though at the time supposed to be valuable, was afterward found to be worthless. Besides, as sustaining the views which we have expressed in this opinion, see the following cases decided by the supreme court of Wisconsin: Morgan v. Hammett, 23 Wis. 30; Blodgett v. Hitt, 29 id. 170; Winslow v. Crowell, 32 id. 642; Mohr v. Tulip, 40 id. 66; Levy v. Martin, 48 id. 198.
It can make no difference that the negotiations respecting the loan a id the payment of the insurance company’s mortgage were not had with DeMoss. DeMoss, or his grantee, whose rights are no greater than his, is seeking by this action to take and hold the benefit of the payment made by Prescott. He cannot take the benefits of such payment without also assuming the obligations and liabilities which follow it. He avers in his pleading that the mortgage has been paid off and satisfied; and he claims all the rights which would accrue to himself by virtue of such payment and satisfaction. This is a satisfaction of such payment to the extent that his liability by< reason thereof is the same as though such payment had been made at his instance and request in the first instance. (Neely v. Jones, 16 W. Va. 625; same case, 37 Am. Rep. 794.)
II. It is further claimed that Prescott’s right to be subroga-ted, if it existed, would not pass to the defendant in error by the assignment of the forged note and mortgage. No good reason can be suggested why this is so. It is insisted that the right of subrogation cannot be assigned or transferred at all; even if it can, still that there must be an actual assignment but specifically intended at the time to be an assignment of the cause of action arising by reason of the right of subrogation. Possibly these positions might be sound if the cause of action were purely a'legal one, but equity permits no such technical rule to defeat substantial justice. Equity looks at the substance of things, and not merely at forms. Is it equitable to all parties, that the defendant in error should be treated as having succeeded to the rights of Prescott? Will the same result in any injury to anyone? The first of these questions must be answered in the affirmative, and the second in the negative. After the bank took the note and mortgage from Prescott and paid him therefor, Prescott had no equitable claim to be subrogated to the lien of the insurance company, because he had been repaid the money he had paid out to satisfy its mortgage. He was then out nothing, and could claim nothing. He was then not the real party in interest. Prior to the transfer of the note and mortgage to the bank, the plaintiff was bound to repay Prescott, because it was not equitable or just that he should take the benefit of the payment made by Prescott without reimbursing him. Would it be any more equitable or just that he should receive the benefit of such payment because some one else had assumed Prescott’s place and would suffer the loss? The plaintiff cannot complain that it would work any injustice to him to hold that the bank has succeeded to Prescott’s rights. No one can claim the right of subrogation, if the bank cannot. The plaintiff ought to pay some one, and the only one who can equitably make a claim upon him, or to whom he can be bound, is the bank. Again, the bank, as the indorsee of Prescott, would have the right to sue Prescott, as indorser, for the money paid for the note and mortgage, and Prescott, as the original payee, would, upon payment to his indorsee of the money he had received, be again reinvested with the right of subrogation to the insurance company’s lien, and could then maintain a suit thereon. What can be done indirectly can be done directly. Especially is this true in equity, when thereby, as in this case, a multiplicity of suits is avoided, equity is done to all the parties, and the same result is accomplished that would follow a circuity of action.
The rule in such a case as this undoubtedly is that the real party in interest, whether be is the person who originally paid the money or some other person standing in the same relation to the parties and the subject-matter that the first party originally occupied, can maintain the suit, if thereby the rights of other persons are not prejudiced, and if he is the only person who can maintain the suit. (Civil Code, § 26.) In this connection, see Seller v. Lingerman, 24 Ind. 264; Muir v. Berkshire, 52 id. 149.
We perceive no error in the rulings or judgment of the court below, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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Per Curiam:
Under the authority of The Atchison, Topeka & Santa Fé Railroad Company v. Howe, 32 Kas. 737, we must hold that the taxes levied for the payment of the salaries and current expenses of the board of railroad commissioners of the state, are null and void.
Under the authority of The Kansas City, Topeka & Western Railroad Company v. William Albright, just decided, the commissioners of Johnson county had authority to levy and assess a tax for the support of the poor of that county, in an amount, in excess of $500, without a previous vote of the people at a general election authorizing the levy.
The demurrer to the first cause of action will be overruled but the demurrer to the second alleged cause of action will be sustained. The cause will be remanded, with direction to the court below to dispose of the case in accordance with the views, herein expressed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by a defendant doctor in a malpractice action originally instituted by decedent during his lifetime and revived by plaintiff, as administratrix for the estate of her decedent husband, against such doctor and the hospital where decedent had been admitted as a patient for the purpose of having a hemorrhoidectomy performed.
The hospital did not appeal and is merely a defendant here.
The two questions raised by the defendant doctor s appeal are centered around an amended petition filed by the plaintiff.
1. Was it error to overrule the doctor’s motion to strike the amended petition because the filing of the amended petition and the joinder of the doctor as defendant was without leave of court having first been obtained and was, therefore, ineffectual to make the doctor a properly joined and served party defendant?
2. Was it error to overrule the doctor’s demurrer to the amended petition because the cause of action alleged therein against the doctor was barred by the two year statute of limitation, G. S. 1949, 60-306, Third (now K. S. A. 60-513 [4])?
Briefly, the facts alleged in this appeal are that on June 5, 1961, decedent, as a patient of Doctor H. J. Veatch, was admitted to Mt. Carmel Hospital in Pittsburg, Kansas, for the purpose of having a hemorrhoidectomy performed, as previously mentioned. The hospital is owned and operated by a Kansas corporation, Sisters of St. Joseph of Wichita, Kansas. On June 6, 1961, at 8:00 a. m. such surgery was performed. Thereafter, and while decedent was under deep anesthetic and sedation, he was placed in Room 235 of the hospital. At 10:45 a. m. while he was still under deep anesthetic and sedation, decedent fell from the bed sustaining a comminuted inter trochanteric fracture of the left hip. The bed was not equipped with side boards, rails, bars or other safety devices to prevent decedent from slipping, sliding, falling or toppling from the bed, or if the bed was so equipped such devices were not raised to restrain decedent from falling. No one was present from the time decedent was placed in the bed until after he had fallen therefrom.
The original petition in this action against the hospital only was filed on December 1, 1961, by decedent, who died on March 22, 1962. On June 4, 1962, the present plaintiff, as administratrix of decedent’s estate, sought an order of revivor under G. S. 1949, 60-3201 (now K. S. A. 60-1801) and 60-3212, which order was granted on the same date. On June 6, 1963, over one year later, plaintiff filed her amended petition including as defendant the attending physician and surgeon, Doctor H. J. Veatch.
At the time of filing the amended petition the plaintiff had not obtained leave of court therefor. However, five days later, on June 11, 1963, an order was entered by the district court giving plaintiff permission to file her amended pleading making Doctor Veatch a party defendant. Under G. S. 1949, 60-759, then in force, trial courts are clothed with wide discretion in allowing amendments. (Fiest v. Steere, 175 Kan. 1, 259, P. 2d 140; Blair v. Hallmark, 188 Kan. 102, 360 P. 2d 1051.) In Reed v. Western Light & Tel. Co., 155 Kan. 134, 122 P. 2d 723, we said:
“This section gives trial courts the authority to allow amendments to pleadings in the furtherance of justice and on such terms as the court may deem proper.” (p.639.)
In our view the order of June 11, 1963, constituted the trial court’s consent to the amendment filed June 6, 1963. Accordingly, we cannot say that plaintiff’s amended pleading did not have the court’s permission. Approval of plaintiff’s action in filing the amended petition is further evidenced by the trial court’s refusal to sustain Doctor Veatch’s motion to strike it from the files.
The record reveals that after the amendment was filed, service of summons was obtained on Doctor Veatch the following day, June 7, 1963. On this showing of diligence, the action against Veatch must be deemed to have been commenced on the date of filing (G. S. 1949, 60-308) and thus within the two year period of limitations. (Mingenback v. Mingenback, 176 Kan. 471, 271 P. 2d 782.)
We hold the amended petition was sufficient to make Doctor Veatch an additional party defendant and was timely filed. It is unnecessary to discuss other points raised by the parties.
Judgment affirmed. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
Mary Doyle brought an action against her husband, P. A. Doyle, and his brother, Philip Doyle, in the district court of Davis county, and in her petition alleged substantially, that for many years she had been the owner and in the continuous possession of two tracts of land in Davis county. Her husband resided with her upon the land, and in consideration of the use and occupation of the same he undertook to pay all taxes levied against it; but for the purpose and with the intent to defraud her and acquire title to the land in himself, he purposely neglected to discharge the taxes on the land'for the year 1874, and permitted it to be sold at tax sale for taxes; that thereafter he paid the delinquent taxes, together with the interest and costs which had accrued, and caused certificates of sale to be executed in the name of Philip Doyle, his'brother. That on September 10, 1878, P. A. Doyle, neglecting to redeem the land from tax sale, and in pursuance of a design and purpose on the part of the defendants to wrongfully deprive the plaintiff of her right, title and ownership in and to said lands, caused two tax deeds to be executed by the county clerk of Davis county in the name of said Philip Doyle, but secretly in trust for P. A. Doyle. These tax deeds were recorded on September 21, 1878, and copies of the same are set forth in the plaintiff’s petition. She further alleges that she had no knowledge of the sale of the land for taxes, nor that tax deeds had been executed, until long after such proceedings were had and completed. She therefore asked that the tax sales be declared illegal and void, and that the tax deeds be canceled and held for naught.
To this petition the defendants filed a demurrer, and contended that the petition sets up an action for relief on the ground of fraud, and is barred by the two-years statute of limitations. Another ground of demurrer asserted by the defendants is, that as the suit is against the tax-purchaser to avoid a tax deed which has been recorded more than five years prior to the commencement of this action, the right to maintain the aetion has been cut off by the limitation provided in § 141 of the tax law.
The plaintiff’s action we think clearly comes within the two-years limitation. She bases her right to relief upon the wrongful design and action of the defendants. In terms, she charges fraud upon the part of both of the defendants, claiming that they were acting in collusion to wrongfully wrest from her the title and ownership of her land. It is charged that P. A. Doyle, who was legally bound to pay the taxes levied against the land, violated his trust and betrayed the plaintiff, by purposely failing to pay the taxes and concealing his neglect from her, and that the taking of the tax-sale certificates and the execution of the tax deeds in the name of Philip Doyle, were all done by the defendants in pursuance of the fraudulent purpose to acquire title to the land in themselves. The acts charged against the defendants certainly constitute a fraud upon the plaintiff, and if the action is maintainable, and the allegations are proven, it follows that the tax deeds should be held illegal and void.
The essential question to be tried in the case, and the real ground of plaintiff’s right to recover, is the fraud of the defendants, and therefore that provision of §18 of the code, limiting the time within which actions for relief on the ground of fraud may be brought, must be held to apply. (Main v. Payne, 17 Kas. 608; Kennedy v. Kennedy, 25 id. 151; Duffitt v. Tuhan, 28 id. 292.) It is expressly provided in the section of the code last referred to, that a cause of action shall not be deemed to have accrued until the discovery of the fraud. In this case it appears that the fraud was consummated when the deed was obtained and recorded, but, while the deed may be and probably is regular upon its face, yet having been fraudulently acquired, it will not of itself divest the original owner of her interest in the land. Neither will it start the statute of limitations relatingto tax titles to running. (Duffitt v. Tuhan, supra; Carithers v. Weaver, 7 Kas. 110.) Nor will the recording of these tax deeds operate as a notice to the plaintiff of thedefendant’s fraud. In such a case there is no constructive discovery. It has been held that- — ■
“If an agent or tenant should fraudulently allow the lands of his principal or landlord to be sold for taxes, and take the deed himself and put it on record, this would not be notice to the principal or landlord that would set running the statute that would bar him from an action of relief against the fraud.” (Duffitt v. Tuhan, supra. See also McCahon v. McGraw, 26 Wis. 622.)
It is contended, however, by the plaintiffs in error, that the petition shows the fraudulent action of the defendants to have occurred more than two years prior to the commencement of this suit, but as the plaintiff failed to set forth when the fraud was discovered, or to plead anything which would take the case, out of the operation of the statute, the alleged cause of action must be deemed to be barred. The only allegation to be found in the petition in respect to her knowledge of defendants’ action or regarding her discovery of the fraud is as follows:
“Plaintiff further states that she had no knowledge or information in respect to the sale of said lands at said tax sale, or that the same had been sold, or were about to be or bad been deeded in pursuance of such sale, until long after such proceedings were had and completed.”
In this respect the petition must be held insufficient. Young v. Whittenhall, 15 Kas. 579, is a case in many respects like the present one, and there the precise point under consideration was determined against the pleader. It was ruled that:
“Where the petition shows upon its face that the fraud upon which the cause of action was founded was consummated more than two years before the commencement of the action, the plaintiff must further set forth in his petition that he did not discover the fraud until within less than two years before the commencement of the action, or his petition will be held defective on demurrer.”
From these considerations, it follows that the court erred in overruling the defendants’ demurrer. It may be remarked, that if we should disregard the allegation of fraud in the pe- titiou, and treat, the action as one to set aside the tax deeds upon grounds other than fraud, the limitation of five years prescribed in § 141 of the tax law would be an effectual bar against the plaintiff. There it is provided that a suit or proceeding against the tax-purchaser, his heirs or assigns, to defeat or avoid a sale and conveyance of land for taxes, shall be commenced within five years from the time of recording the tax deed, and not thereafter. The plaintiff began this action on the 9th day of June, 1884, and as has been seen, the tax deeds were recorded on September 21,1878. Under this statute, and within the decisions of this court, the original owner cannot maintain an action or set up any claim for affirmative relief that would in effect defeat and avoid the plaintiff’s tax deed. (Walker v. Boh, 32 Kas. 354; Myers v. Coonradt, 28 id. 211.) The limitation of this statute will not, however, prevent the plaintiff from defending her rights in the land when they are attacked by the holder of the tax deed; though in this case it appears that the tax deeds of the defendant, Philip Doyle,, are of little if any value. The plaintiff has been in the continuous possession of the land ever since the recording of the tax deeds by Philip Doyle. No action has been brought by him for the recovery of the land, and under subdivision 3 of §16 of the code his right of action to recover the lands under his tax deeds has long been barred.
The judgment of the district court overruling the demurrer must be reversed, and the cause remanded.
All the Justices concurring. | [
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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 the trial court’s order made March 24, 1964, and entered April 6, 1964. The judgment was against plaintiff on all causes of action in plaintiff’s amended and supplemental petition except the sixteenth cause of action in the amended petition seeking recovery of real estate commission and expenses in the re-leasing of the premises to Walgreens.
George Gordon, the plaintiff died on February 24, 1965; Bertha Gordon, his wife, was appointed and qualified, pursuant to the provisions of George’s will, as executor of George’s estate, and finally, on March 15, 1965, this court allowed her motion to be substituted as party plaintiff. Further, the action sought recovery of the difference between rentals after destruction of the premises by fire and the abandonment of the lease by Consolidated and Berkson’s up to Walgreens taking possession and paying full rent under its lease, plus accrued taxes, insurance premiums and expense of reletting the premises.
We should state that all of the above was also required of George and Bertha in a ninety-nine year lease (May 1, 1931, to April 30, 2030) with Louise V. Stover, the landowner, and Consolidated and Berkson’s had full and complete knowledge thereof.
Hereinafter plaintiff will be referred to as George, the executor as Bertha, the defendants as Consolidated and Berkson’s, and Louise V. Stover as the landowner.
This is the second appearance of this matter, the first being the case of Gordon v. Consolidated Sun Ray, Inc., 186 Kan. 772, 352 P. 2d 951, and to avoid repetition that opinion insofar as pertinent is made a part hereof and will be designated when referred to herein as the first case, which was done at times by the parties herein.
Our preliminary facts are fully set out in the first case beginning on page 772. They show the twenty-five year lease, from May 1, 1956, to April 30, 1981, providing $30,000 annual rent payable in $2,500 monthly installments, between George, as lessor, and Consolidated and Berksons as lessees. Consolidated and Berksons were also obligated to pay insurance, taxes and in case of fire, to replace the destroyed premises; and fire would not terminate the lease.
On March 17, 1959, a fire rendered the premises untenantable and in June 1959, Consolidated and Berkson’s vacated and abandoned the premises and failed and refused to comply with any of their duties under the lease until forced to do so by court action. The first case ended with judgment for plaintiff and was affirmed on appeal.
During the pendency of the first case and on February 24, 1960, George settled with Consolidated and Berkson’s for the sum of $72,-000 so far as their duty to pay for reconstruction of the premises was concerned but it was further agreed such settlement would not prejudice or affect any other claims of the parties in the case, and on May 20, 1960, the parties advised the court of the settlement, and the sixth cause of action was dismissed with prejudice.
After Consolidated and Berkson’s abandoned the premises and George had notified them in writing that he was not accepting a surrender of the lease but was holding them liable, George took steps to mitigate the damage by notifying realtors in Topeka and Kansas City that the premises were available for re-leasing, and in April, 1960, George relet the premises to Walgreen Co., an Illinois corporation, for a term which extended through the unexpired term of the Consolidated and Berkson’s lease. It was stipulated that the lease with Walgreens was made after George had considered all other proposals and believed that Walgreens offer would result in the greatest mitigation of damages flowing from Consolidated and Berkson’s breach of their lease. The rental payable under Walgreens lease greatly mitigated the liability of Consolidated and Berkson’s under their abandoned lease.
In February, 1961, George brought a second action against Consolidated and Berkson’s to recover the rents due under their abandoned lease and recovered the accrued monthly payments through February, 1961, the accrued taxes, and insurance premiums. Judgment was rendered in George’s favor and no appeal was taken therefrom.
In neither the first nor the second mentioned case did Consoli dated and Berkson’s assert as a defense that George had accepted then- surrender and abandonment of the original lease.
On March 12, 1962, the third and instant action was filed, and the petition was amended August 10, 1962. In this petition George sought to recover the difference between the rental provided in the lease between him and Consolidated and Berkson’s and the rental received by him from Walgreens on reletting the premises subsequent to the second action; and accrued taxes and insurance premiums and expenses of reletting the premises. For the first time, after a complete settlement was made between George and Consolidated and Berkson’s of their sixth cause of action in the first suit, George made a claim for a portion of the expenses of rebuilding the building on the premises, and Consolidated and Berkson’s for the first time asserted that they were not hable for the reason that George by his acts of reletting the premises and reconstructing the building at an excessive cost accepted their surrender of the lease.
The trial court, in substance, found and held that George had accepted Consolidated and Berkson’s abandonment of the lease on March 1, 1961, when Walgreens began paying rent under its lease, and denied George’s right to recover the deficiency in the rents prayed for. The trial court further disallowed George’s cause of action for the reconstruction costs, based upon the settlement between the parties in the sixth cause of action in their first case, and further found that George was entitled to recover the $5,000 expenses for real estate commission in finding a new tenant and releasing the premises, and entered judgment accordingly. George appeals and asserts that the district court erred in holding (1) that he had accepted a surrender of the lease from Consolidated and Berkson’s, and (2) that the defense of any such acceptance was not available to. Consolidated and Berkson’s in that they faffed to raise those issues at the first opportunity in either the first or second action between the parties, both of which went to final judgment. Consolidated and Berkson’s did not cross appeal from any part of the judgment rendered.
It is a long-standing rule in this state that where a tenant, under contract to pay rent on real property, abandons the property and notifies the landlord of that abandonment, it is the duty of the landlord to make a reasonable effort to secure a new tenant for the property and obtain rent therefrom before he can recover rent from the old tenant under the contract. Where a party seeks redress for the wrong of another, the law requires that he shall do whatever he reasonably can and improve all reasonable opportunities to avoid the consequences and to lessen the injury. (Marmont v. Axe, 135 Kan. 368, 10 P. 2d 826, Lawson v. Callaway, 131 Kan. 789, 293 Pac. 503.)
While the rule declared in Kansas appears to be in conflict with the weight of authority in the United States, it has been so long declared and so consistently followed that it has become a rule of property and should not now be overruled. (Lawson v. Callaway, supra.)
Where a tenant vacates or abandons the leased premises before the end of the term, the landlord has a right to accept the surrender and terminate the lease or to enter and take possession for the purpose of mitigating the damages for which the tenant is liable because of his breach of the lease. The mere entry and taking possession of premises abondoned by a tenant, for the purpose of leasing them, is an equivocal act not amounting to an election by the landlord between an acceptance of surrender terminating the lease, and his right to relet for the purpose of mitigating the damages for which the tenant is liable. The institution of an action to recover rent for the period between the time the premises were abandoned by the tenant and the time when they were relet establishes the fact that the landlord’s taking possession was for the purpose of reletting the premises in order to mitigate damages, rather than for the purpose of accepting the surrender and terminating the lease. (Weinsklar Realty Co. v. Dooley, 200 Wis. 412, 228 N. W. 515, 67 A.L.R. 875.)
Consolidated and Berksons cite Moore v. Brooks, 148 Kan. 738, 84 P. 2d 864, where the action was to recover rent on a lease of business property. Defendant defaulted after four months’ payment of rent. A demurrer to defendant’s answer of res judicata was sustained and in turn was affirmed by this court. We can find no comfort or solace for Consolidated and Berkson’s in that case. On the contrary, it coincides with our determination herein.
In the instant case the lease expressly gave George the option, upon Consolidated and Berkson’s abandoning or vacating the premises before the expiration of the term, to relet the same and apply the rents reserved from such reletting upon Consolidated and Berkson’s obligation for rents due or to accrue. Consequently, George’s reletting of the premises was merely in exercise of the option which Consolidated and Berkson’s gave to him. George’s act of reletting the premises to Walgreen’s was for the benefit of Consolidated and Berkson’s in order to mitigate the damages for which they were liable because of their breach of the lease. For the reasons stated, there was no accepted surrender and termination of Consolidated and Berkson’s obligations, and it was hable to George for the unpaid rents.
It is also an established rule of this state that surrender of the premises under a lease by the tenant must have the consent of the landlord in order that the tenant may be discharged from liability to pay rent. Consent of the landlord may be expressed or may be implied from all the circumstances. Consent is not implied from the mere fact of a reletting, because a landlord who does not consent to a surrender is nevertheless bound to reduce his damages by reletting the premises if he can. (Hoke v. Williamson, 98 Kan. 580, 158 Pac. 1115.) There is no question but that the law applicable here is that surrender of leased premises by a tenant must be with consent of the landlord to relieve the tenant from the rent specified in the lease, or that where a tenant surrenders his lease without consent of the landlord the measure of damages is the difference between the contract price for the remainder of tire term and the amount for which the landlord is reasonably able to relet the premises to a third party. (Peterson v. Wilson, 180 Kan. 180, 303 P. 2d 129; Wilson v. National Refining Co., 126 Kan. 139, 266 Pac. 941; Hoke v. Williamson, supra.)
Acceptance of a surrender of a lease should not be presumed. The burden of proving it is on the lessee, and this is particularly true where the lessee abandons the premises and ceases paying rent. A tenant may not, by abandoning the premises and ceasing to pay rent, relieve himself of obligation to pay rent. He cannot reap an advantage from his own breach of the contract. If he desires to surrender he must secure the landlord’s consent, and if he alleges surrender he must establish unequivocal manifestation of consent on the part of the landlord to termination of the relation of landlord and tenant. (Guy v. Gould, 126 Kan. 25, 266 Pac. 925.)
In Wilson v. National Refining Co., supra, there arose a situation similar to the present one. The lessee abandoned the premises. The lessor gave notice that he was not accepting a surrender of the lease and he then relet the premises. The lessee claimed that there had been acceptance of the surrender of the lease by the re-letting. This court stated:
“If, after notifying the lessee, who had voluntarily surrendered the lease and abandoned the premises, that he would be held responsible to the end of the term, the lessor relets the premises to a third party, such reletting will not in and of itself imply an acquiescence in or acceptance of the surrender of the lease so as to relieve the lessee of liability for the breach of the contract.” (Syl. f 13.)
In the instant case Consolidated and Berkson’s do not contend George expressly accepted their surrender of the lease, and we find nothing in the record to indicate George impliedly accepted their surrender and abandonment of the lease. Shortly after the abandonment, as aforementioned, George notified Consolidated and Berkson’s in writing that he did not consent to nor accept the surrender of the lease but would hold them responsible for their obligations thereunder. Moreover, George brought two separate suits and in the instant action to recover the monthly accrued rentals since the abandonment, unpaid taxes, insurance premiums, and real estate commission for reletting of the premises. In the two previous cases judgment was in favor of George and paid by Consolidated and Berkson’s.
The instant action was begun and the case was tried and judgment rendered by the trial court in March, 1964. For nearly five years George was asserting his rights under the lease of Consolidated and Berkson’s. Under these facts, and those heretofore related, it is obvious that Consolidated and Berkson’s never secured George’s consent to their surrender of the lease nor did George’s acts of diligently reconstructing the premises and securing a new tenant, thereby mitigating Consolidated and Berkson’s liability under its lease, amount to acceptance of their abandonment.
There is no contention on the part of Consolidated and Berkson’s that George did not act in good faith in reletting the premises or that he did not secure the best available tenant. The fact that George spent some $100,000 of his own money in reconstructing a new building to secure a new tenant, which increased the amount of rent over the period of the new lease with Walgreens, all of which mitigated Consolidated and Berkson’s liability and inured to their benefit gave them no right to complain.
We are of the opinion the trial court erred in holding that George accepted Consolidated and Berkson’s surrender of the lease. In its brief Consolidated and Berkson’s argue they should not be held liable for the cost of the reconstruction of the premises. The trial court disallowed this item, and George does not include that ruling among his statement of points upon which he intends to rely, nor his points relied upon in his brief, and, therefore, it is not here for appellate review.
Other matters in the record have been considered, but in view of our holding it is unnecessary to discuss them. The judgment of the trial court denying George’s claim for reconstructing the premises and the allowance to George for real estate commission as an expense of reletting the premises is affirmed; the judgment of the trial court holding George accepted surrender of Consolidated and Berkson’s lease is reversed and the case is remanded to the trial court for further proceedings in accordance with the views herein expressed.
Judgment is affirmed in part and reversed in part with instructions. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from a judgment entered in a declaratory judgment action. (K. S. A. 60-1701 et seq.) Pelican Transfer and Storage, Inc. (Pelican) sought a declaratory judgment to obtain an interpretation of its operating rights under an intrastate certificate of convenience and necessity and to enjoin the State Corporation Commission (commission), and the Kansas Highway Patrol from interfering with its operations.
Pelican is the transferee and holder of an intrastate certificate of convenience and necessity issued by the commission to operate as a motor common carrier of household goods over irregular routes, from, to, and between all points and places in the state of Kansas.
As the result of Pelican transporting a quantity of assorted stock merchandise, a dispute arose relating to the scope of operation authorized by the certificate. Pelican insists the meaning of the authority is clear and unambiguous, that the clause “furniture, fixtures, equipment and property of stores, offices, museums, institutions, hospitals, or other establishments when a part of the stock, equipment, or supply of such stores, offices, museums, institutions, hospitals or other establishments” permits it to tranport the stock in trade of those establishments without limitation. The commission agrees that Pelican can transport all the said commodities, but only when the movement is in connection with a change of location of the business or activity.
The commission filed a motion to dismiss the action for lack of jurisdiction or in the alternative to remand the matter to the commission. On March 27, 1964, the district court entered its findings, which read, in part:
“An actual bona fide controversy exists between plaintiff and defendant in interpreting the meaning of the second paragraph of said Certificate of Convenience and Necessity. . . .
“That this language is clear and unambiguous and includes authority to transport among other things the property of stores and other establishments when a part of the stock, equipment and supply of such stores and other establishments and includes so called stock in trade; that the authority is not limited as contended by the defendant such as when moved in connection with a change of location of a store, office, museum, hospital or other establishment.’ That no such limitation is contained in the authority nor by any rule or regulation officially adopted by the defendant, K. C. C.
“This is not an appeal from any ruling of the defendant and no administrative remedy has been by passed. This is an original suit in the District Court, pursuant to the Declaratory Judgment Statutes and under said statutes there is no concurrent jurisdiction between the Court and the defendant. The defendant’s Motion to Dismiss must be considered as a Demurrer and where an actual controversy exists the matter must proceed on its merits. Herein the parties stipulated that a controversy does exist and the Court so finds a controversy does exist and the Motion is overruled. With original jurisdiction vested in the Court under the Declaratory Judgment Statutes, there is nothing to remand to the defendant, K. C. C. . . .”
Thereafter, the court rendered judgment in favor of Pelican and issued an injunction enjoining the State Highway Patrol from interfering with Pelican’s operations under the certificate as so interpreted.
From this judgment the commission appeals.
The questions involved are (1) whether an interpretation of a certificate of convenience and necessity is essentially an administrative matter that must first be submitted to the commission for determination before a judicial review becomes possible, and (2) whether Pelican as a matter of right may maintain an independent action for a declaratory judgment and for injunctive relief against the commission under our declaratory judgment statutes (K. S. A. 60-1701 et seq.).
Counsel for the commission contends the district court had no jurisdiction to entertain Pelican’s action. The point is well taken.
It is the province of the legislature to determine in what manner an appeal may be taken and to designate the court of jurisdiction. (City of Hutchinson v. Wagoner, 163 Kan. 735, 188 P. 2d 243; Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 49, 286 P. 2d 515; Kansas Constitution Art. 3, § 6.)
The legislature has vested in the commission full power, authority and jurisdiction to supervise and control common carriers, as defined by the act, doing business in this state, and empowers it to do all things necessary and convenient for the exercise of such power, authority and jurisdiction. (K. S. A. 66-101.) Specifically, the legislature vests the commission with authority to license, supervise and regulate every public motor carrier operating in this state. The commission may by general order or otherwise, prescribe rules and regulations governing all such carriers. (K. S. A. 66-1,112.)
Inherent in these powers granted by the legislature is the commission’s authority to interpret its rules, regulations, orders and decisions so as to insure the effectiveness and uniformity of its procedures. In view of its authority to issue or deny (K. S. A. 66-1,114), transfer or assign (K. S. A. 66-1,118), permit abandonment (K. S. A. 66-1,119) and revoke or amend (K. S. A. 66-1,129) such certificates, it is inconceivable to believe that the legislature did not intend to provide the commission with full authorty to interpret its certificates of convenience and necessity.
The legislature, to protect the interest of motor carriers, enacted-a specific statutory procedure for review of an order or decision,..of the commission. The pertinent sections of our statute (K. S. A. 66-118a et seq.) outline the procedure and duties of the commission and district court in a case such as this, and they are summarized and quoted, in part, as follows:
Section 66-118a makes provision for review before the commission and permits joinder of any party interested in the order , or decision.
Section 66-118b, in part, reads:
“Any party being dissatisfied with any order or decision of the state corporation commission may, within ten (10) days from the date of the service of such order or decision, apply for a rehearing in respect to any matter determined therein . . . No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall make application for a rehearing as herein provided. . . .” (Emphasis supplied.)
Section 66-118c provides that an applicant may appeal to the district court within thirty days after rehearing is denied or within thirty days after a decision is granted on rehearing. This section requires that the commission and interested parties be given notice of review.
Section 66-118d, in part, reads:
“The secretary upon receipt of said copy of the application for review shall forthwith transmit to the clerk of the district court in which the application for review has been filed, a certified transcript of all pleadings, applications, proceedings, orders or decisions of the commission and of the evidence heard by the commission on the hearing of the matter or cause. . . .
“All proceedings under this section shall have precedence in any court in which they may be pending, and the hearing of the cause shall be by the court without the intervention of a jury. The procedure upon the trial of such proceedings in the district court and upon appeal to the supreme court of this state shall be the same as in other civil actions, except as herein provided. No court of this state shall have power to set aside, modify or vacate any order or decision of the commission, except as herein provided.” (Emphasis supplied.)
Section 66-188f permits no new or additional evidence to be introduced upon trial or review but provides that the trial will be based upon the commission s certified transcript.
It is abundantly clear that the legislature has vested original, exclusive, primary jurisdiction in the commission to hear and determine all questions with respect to the supervision and regulation of motor carriers operating in this state. Likewise, the legislature intended that any aggrieved party should have a full and complete remedy before the commission and in the courts relative to any grievance he might have as the result of any rule, order, regulation or decision of the commission. Since the legislature has provided a statutory review, if an aggrieved party desires to challenge the validity of the commission’s order, or any part thereof, on legal or equitable grounds, or obtain an interpretation of the operative authority of his certificate, his remedy is first before the commission, then by appeal from the commission’s order to the district court, and by appeal from that court to this court. (Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 176 Kan. 561, 271 P. 2d 1091; Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 271 P. 2d 733.)
Where judicial review under the foregoing statutes is sought, the jurisdiction of a district court is limited to reviewing orders or decisions of the commission. In the instant case, Pelican, in filing an independent action, did not follow the procedure outlined in our statutes.
In Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, supra, it was said:
. . It is inconceivable to believe the legislature intended an independent action for declaratory judgment and injunctive relief against the commission could be maintained in one district courrt, without the benefit of the record made before the commission, while another action for the same purpose could be maintained on such record in the reviewing court by another party affected by the same order. Such proceedings readily might result in wholly contrary judgments and endless confusion.” (1. c. 570.)
See, also, Anchor Casualty Co. v. Wise, 172 Kan. 539, 241 P. 2d 484, and Bushman Construction Co. v. Schumacher, 187 Kan. 359, 356 P. 2d 869.
Pelican has a complete remedy before the commission as to any issue involving tire interpretation of its certificate. All of the facts and contentions of the affected and interested parties could then be considered by the commission, and on an appeal to the district court, the court would have before it the full benefit of the complete record on which the action of the commission was based. In such a proceeding, confusion and uncertainty is eliminated. There would be one decision, and that decision would consider the rights and contentions of all parties. Reing full and complete, that procedure is the only procedure available to Pelican with respect to the interpretation of its certificate.
After a careful examination of the record, we conclude that an independent action for declaratory judgment, such as Pelican sought in the instant case, may not be maintained in any court until Pelican pursues and exhausts its administrative remedies before the commission. It is desirable to eliminate the filing of independent actions such as the instant one, and to secure uniformity of decisions in matters that are essentially ones of administrative discretion in technical matters. It follows that the district court of Shawnee County lacked jurisdiction to entertain the instant independent action for declaratory judgment.
The judgment is reversed. | [
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The opinion of the court was delivered hy
Price, J.:
This was an action to recover for the breach of a written lease covering property used as a dancing school and studio.
No service of process was had on defendants Furrey and Olson, and they are not parties to the judgment and this appeal.
The case was tried by the court without a jury in December, 1963. Judgment was rendered against Arthur Murray, Inc., a corporation, (hereafter referred to as defendant) in January, 1964, in the amount of $1,900.00, as prayed for.
Defendant has appealed. Appellate procedure is governed by the new code of civil procedure and the rules of this court relating to appellate practice found at 191 Kan. xn.
In the pleadings and during the trial, defendant denied the agency of Furrey and the Olsons to bind it by the lease. Implicit in the judgment rendered, is a finding otherwise.
In the “Record on Appeal” defendant lists 6 statements of points. Points 1, 2 and 3 relate to alleged errors concerning the evidence of and the finding of agency.
Point 4 is—
“The Court erred in overruling the demurrer to the evidence of the Defendant Arthur Murray, Inc.”
Point 5 is—
“The Court erred in awarding judgment in favor of plaintiff against Defendant Arthur Murray, Inc.”
Point 6 is that the court erred in overruling defendant’s motion for a new trial.
In its brief defendant (appellant) states that—
“. . . appellant is not now asserting in this appeal that the question of agency is an issue. For this reason the Corut may assume that defendants E. F. Furrey and Edith Olson were agents of the appellant by virtue of the agreements between them and appellant.”
and that—
“Although the Statement of Points contains six distinct points relied upon in seeking a reversal of the judgment of the trial court, appellant relies chiefly on two; namely that the trial court erred in overruling defendant appellant’s demurrer to plaintiff appellee’s evidence and in ultimately awarding judgment in favor of plaintiff appellees against the defendant appellant. The other points indicated are either waived by appellant or treated in the above two basic points.”
Because of the foregoing we therefore have only points 4 and 5, above, before us, and plaintiffs contend that both points, as stated by defendant, are inadequate and do not comply with Rule No. 6 (d) of this court, the pertinent portion of which reads:
“Each appellant shall serve and. file with his designation of the record a concise statement of the points on which he intends to rely and which will be briefed in the appeal. The points shall be without duplication, and each point shall state a particular and ultimate issue with reference to which reversible error is claimed to have been committed, but only such detail is required as will (1) enable opposing parties to judge the sufficiency of the designated record on appeal, and (2) inform the Supreme Court of the specific issues to be considered. A mere statement that a ruling was against the appellant without specifying what issue was involved in such, ruling will not he an adequate statement of a point (e. g., that a motion for summary judgment, or directed verdict, or modification of a judgment was overruled), unless it is further stated on what legal or factual issue such riding was erroneous.” (Emphasis supplied.)
We believe that plaintiffs’ contention is well taken.
Rule No. 6 provides the procedure relating to the contents and preparation of the record on appeal contemplated by K. S. A, 60-2104, which provides:
“The record on appeal shall contain such matters and shall be prepared in such manner and form, as shall be prescribed by rules of the supreme court.”
In the 1965 Cumulative Supplement to “Kansas Code of Civil Procedure” by Judge Spencer A. Gard, the author, in discussing Rule No. 6 states:
“The procedure prescribed by this rule is similar to that under Rules 75 and 76 of the Federal Rules of Civil Procedure. Variations from the federal procedure may be noted as follows:
“The federal rule merely requires a ‘concise statement of the points’ on which appellant relies. The Kansas rule not only requires this in subsection (d) but specifies in some detail the manner and form in which it shall be done, not only by the appellant but by the appellee or ‘any other party to the appeal.’” (p. 56)
In Woodbury v. Clermont, 236 F. 2d 132, it was said:
“Assignments 2 and 4 are that the District Court erred in entering judgment for appellees. These assignments present nothing for review.” (p. 134)
Points 4 and 5, above, which state merely that the court erred in overruling defendant’s demurrer to plaintiffs’ evidence and in rendering judgment in favor of plaintiffs and against defendant, are insufficient to comply with the quoted portion of Rule No. 6 (d), above, and present nothing for review.
Point 6—that the court erred in overruling defendant’s motion for a new trial, is neither briefed nor argued and must be considered as abandoned.
We are not unmindful of the fact that at the present time attorneys, trial courts, and this court—are going through a sort of “transitional period” with respect to the provisions of the new code of civil procedure and the new rules of practice promulgated in connection therewith. We believe, however, that in the long run and in the interest of orderly and consistent procedure, literal compliance— within of course reasonable limitations—should be required. Notwithstanding what has been said—we have reviewed the record in this case and find nothing to warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution upon an information charging the defendant with an attempt to carnally and unlawfully know a female child under the age of ten years. The prosecution was under §§ 283 and 31 of the crimes and punishments act. The .defendant was convicted, and sentenced to the penitentiary for one year. He appeals to this court.
The principal points made by counsel for the defendant are as follows: First, the information does not charge any offense; second, the court below erred in overruling the defendant’s plea ■of former jeopardy; third, the verdict of the jury does not respond to the charge made in the information.
We shall consider the second point first, and the other two afterward. We think the defendant’s plea of former jeopardy was rightfully overruled. It appears from the record that the defendant had formerly been tried and convicted upon an information setting forth a criminal charge similar to the charge made in the present case. Now if the information in the for mer case did not charge the same offense as, or an offense included in or including the present offense, or did not charge any offense at all, then of course the ruling of the court below was correct. But, for the purposes of this case, we shall assume that the information in the former case did charge precisely the same offense as was charged in the present case; and upon this assumption, was the ruling of the court below erroneous? We think not. The defendant was tried and convicted upon the former charge, and after his conviction he moved for a new trial, which was granted; and then a new information was filed, upon which the present conviction and sentence were had. The record of the proceedings upon the first information, after setting forth all the proceedings down to and including the verdict, then sets forth the following, among other things :
“ On the second day of May, 1884, the said defendant, Louis Hart, filed his motion for a new trial, and to vacate and set aside the said verdict, which motion is in the words and figures following, to wit:
‘In the Disteict Court oe Cloud County, Kansas. — The State of Kansas, Plaintiff, v. Louis Hart, Defendant. — And now comes the defendant and moves for a new trial, for the reasons:
‘1. The verdict is contrary to the evidence.
‘2. The verdict is contrary to the law.
‘3. Errors of law occurring during the trial, excepted to by the defendant at the time.
'4. Errors in accepting evidence.
‘ 5. Errors in rejecting evidence.
‘6. The information does not state sufficient facts to constitute an offense.
‘7. The information and the evidence do not show or prove any offense under the laws of Kansas. L. J. Crans, Attorney for Defendant.’
“That thereupon and on consideration of the court the said motion of the said defendant for a new trial was by the court sustained, and said verdict was wholly set aside and a new trial granted, as prayed for in said motion. The journal entry of said judgment and proceedings being in the words and figures following, to wit.”
The journal entry contains, among other things, the foregoing motion for a new trial, and then contains the following:
“And the court, having heard the motion and being fully advised in the premises, finds that the information filed herein did not state facts sufficient to constitute the offense of which the defendant is found guilty, allowed said motion.
“And it appearing to the court that a mistake had been made in charging the proper offense, and that there appears to be good cause to. detain the defendant in custody, orders the county attorney to file an information against said defendant under § 283, chapter 31 of the General Statutes; to which ruling and decision of'the court in sustaining said motion and granting a new trial, and ordering said new information to be filed, the state, by said J. W. Sheafor, county attorney, as aforesaid, duly excepted and still doth except. Which information was thereupon filed in obedience to said order.”
It will be seen from the foregoing, that the defendant moved for a new trial upon various grounds, among which were the following:
“6. The information does not state sufficient facts to constitute an offense.
“ 7. The information and the evidence do not show or prove any offense under the laws of Kansas.”
The court granted the new trial, as prayed for in the defendant’s motion. The court also found that the information “did not state facts sufficient to constitute the offense of which the defendant is found guilty,” and ordered that a new information be filed by the county attorney, which was done. By these proceedings, we think the defendant waived his right to subsequently plead former jeopardy. In this state, a criminal information may be amended in a matter of substance or in form. (Cr. Code, §72.) And —
“ When it appears, at any time before verdict or judgment, that a mistake has been made in charging the proper offense, the defendant shall not be discharged, if there appears good cause to detain him in custody; but the court must recognize or commit him to answer to the offense, and, if necessary, recognize the witnesses to appear and testify.” (Cr. Code, §230.)
Also, in this state, when a new trial is granted upon the motion of the defendant in a criminal case, the granting of the same places the party accused in the same position as if no trial had been had. (Cr. Code, §274; The State v. McCord, 8 Kas. 232.) And after a new trial has been granted on the motion of the defendant in a criminal case, the attorney for the state, with the consent of the court, may enter a nolle prosequi, without prejudice to a future prosecution; and thereafter the defendant may be put upon his trial and convicted upon a new information charging the identical offense set forth in the prior information. (The State v. Rust, 31 Kas. 509.) And the same result would follow if, instead of a motion for a new trial being made and granted and a nolle prosequi being entered, a motion in arrest of judgment were made by the defendant upon the ground that the information did not state a public offense, and the motion were granted. (Cr. Code, §§ 277, 279.) Upon the defendant’s motion for a new trial the court granted just what he asked, and of course he waived all right to object to the legal consequences necessarily resulting from such grant. He waived his right to plead former jeopardy, or to object to being again tried for the same offense. We think the decision of the court below upon the defendant’s plea of former jeopardy was correct; and the question presented by such plea and by the facts admitted and proved, was a question purely of law; and the court had a right to decide it itself, and to instruct the jury how to find upon it, and was not bound to leave the question to the jury.
We think the second information, the one of which the defendant now complains for insufficiency, states facts sufficient not only to constitute an offense, but to constitute the particular offense of which the defendant was found guilty. The facts were stated in considerable detail, and were amply sufficient to constitute an offense under §§ 283 and 31 of the crimes and punishments act. The only ground upon which it is claimed that the information is not sufficient is that the word “rape” is not used therein. Now we do not think that it is essential that such a word should be used in the information in such a case; but all that is necessary is, that the information should state facts sufficient to show that an attempt was made to commit the offense of rape by an attempt to carnally and unlawfully know a female child under the age of ten years; and the information amply stated all these things. The exact words used in a criminal statute defining a public offense are never required to be used in a criminal information charging such offense; but any equivalent words, or any words clearly and intelligibly setting forth the offense, are all that are required. (The State v. White, 14 Kas. 538.) The verdict of the jury in the present ease was, that the defendant was “guilty of an attempt to commit a rape, as charged.” We think the verdict was a fair response to the information, that there was no material variance between them, and that both were and are valid and amply sufficient.
The judgment of the court below will be affirmed.
HoutoN, C. J., concurring.
JOHNSTON, J., not sitting. | [
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The opinion of the court was delivered by
HoetoN, C. J.:
The deed from which Eudolph Eichter deduced his title was prior, in point of time, to that of Deetjen, but as it had not been recorded at the time of the guardian’s sale, the question is, did Deetjen, at his purchase, have actual or constructive notice of the title of Eudolph Eichter in the premises? In other words, did he obtain his deed under such circumstances that he is bound to know the title that Eudolph Eichter has to the premises? It appears that Eudolph Eich-ter and his daughter Lydia had lived together as father and daughter upon the premises from the time the land was patented until the daughter was declared insane, and there were no other members of the family. Counsel claim that the evidence before the trial court was not sufficient to charge Deetjen with notice, or even to make him suspect that Eudolph Eichter had any claim upon the land. The evidence shows that the plow-land had been leased for the season of 1882 to Charles Stober, the lease being made in the spring of that year. Deet-jen testified that “He knew that Stober was working a part of the Eichter place during the summer of 1882; that sometime during the summer, before his purchase, Stober told him he rented the land from Eudolph Eichter; that at the time, he knew Eudolph Eichter and his daughter were living together on the premises.” Charles Stober testified that “ He rented the plow-land for the season of 1882, from Eudolph Eichter; that during the summer of 1882 he had a conversation with Deetjen, in which he told him that he rented the plow-land on the place from Eudolph Eichter.” He further testified, that “During that season he worked the plow-land on the premises.”
We think, therefore, that the evidence was sufficient to sus tain the finding of the trial court that “the fact that said Stober was farming the land as the tenant of Rudolph Richter was known to Deetjen at the time of his purchase;” and we also think that the trial court did not err in deciding that “as Deetjen knew that Stober was in the possession of the premises as the tenant of Rudolph Richter, he was bound to inquire as to Rudolph Richter’s title.” (Johnson v. Clark, 18 Kas. 157; School District v. Taylor, 19 id. 287; Greer v. Higgins, 20 id. 420.)
We have already held that the open, notorious and exclusive possession of real estate under an unrecorded deed requires a subsequent purchaser to take notice of the occupant’s title. We do not understand the rule to be that a person must actually reside upon the land to make his possession notice; he may actually improve and cultivate it, and perform open, notorious and decided acts of ownership over it without residing upon it; he may cultivate and improve it by a tenant, for the possession of the tenant is his possession. There is some conflict in the authorities whether the possession of a tenant under a lease is notice simply of his tenancy, or of his tenancy and also of his landlord’s title. But “there seems no good reason why, if it be admitted that possession is notice, or evidence of notice, there should be any modification of the rule that the possession by the tenant is the possession of his landlord. If the purchaser has followed up the suggestion which the possession of the premises by a third party implies, he will inquire of the actual occupant with the probability of learning that he holds as lessee of another. Inquiry cannot safely stop here, for the next step suggested by the circumstances would be to inquire of the landlord.” (Wade on Notice, § 286; 1 Hilliard on Vendors, 4, subdivs. 3 to 8; Wickes v. Lake, 25 Wis. 75; 1 Jones on Mortgages, § 600; Bank v. Flag, 3 Barb. 316; Wright v. Wood, 23 Pa. St. 120.) Deetjen had notice that Stober leased from Rudolph Richter, and this was notice that Rudolph Richter was in possession by his tenant. If Deet-jen had made proper inquiries, he would have been led to the knowledge of the fact that Rudolph Richter had the title to the premises. Information which makes it the duty of a party to inquire, and shows where such an inquiry may be effectual, is notice of all the facts which might be thereby ascertained. No purchaser of real estate is at liberty to remain intentionally ignorant of facts relating to his purchase within his reach, where the property is in the actual, open, visible, notorious and exclusive possession of another, and then claim protection as an innocent purchaser. The presumption of law is, that upon inquiry he will ascertain the true state of the title.
We do not find anything in the record tending to show that Charles Stober gave up the possession of the land leased by him before the purchase thereof by Deetjen, or that Budolph Bichter had in any way prior to that time abandoned the premises. The latter did not actually live upon the land after his daughter was adjudged insane, but that he and his tenant were in possession thereof is shown from the circumstances that Deetjen, in order to get possession of the house on the premises, obtained the keys thereof from Bichter and Stober, and that the latter was cultivating the premises all the season as Bichter’s tenant. Deetjen did not claim any right or possession of the premises upon the trial under a lease, or as a tenant, and therefore upon the issues before the court, the turning over of the keys of the premises did not prejudice Bichter’s rights.
With the permission of the trial court, Deetjen was authorized to file au amended answer so.as to be subrogated to all rights under the mortgages which he had paid off, and therefore his equities by such order were fully protected.
The other matters referred to in the briefs do not need comment.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by "W. H. Burke against E. E. Muthersbaugh, J. W. Muthersbaugh, W. H. C. Riley, Helen A. Riley, K. D. Finn, and C. H. Finn, for equitable relief, and to recover the undivided one-half interest in lot No. 7, in block No. 3, in Rader’s addition to Osborne city, Osborne county. The action was tried by the court without a jury, and the court found generally in favor •of the plaintiff and against the defendants, and rendered judgment accordingly. The defendants then moved for a new trial for the following reasons, to wit:
“1. That the decision of the court is not supported by sufficient evidence, and is contrary to the evidence.
“ 2. That said decision and judgment are contrary to law.
“ 3. That said judgment was rendered for the plaintiff, when by the law and the evidence it ought to have been rendered for the defendants.”
This motion was overruled by the court below, and the defendants, as plaintiffs in error, then brought the case to this court, and assign the following alleged errors, to wit:
“1. The said court erred in this, that the said judgment was given in favor of the said W. H. Burke, defendant in error, when it ought to have been given in favor of the plaintiffs in error, according to the law and the evidence.
“2. That the said judgment was rendered contrary to the law and the evidence as produced at said trial.
“ 3. That the court erred in overruling the motion for a new trial filed by plaintiffs in error.”
The brief of the plaintiffs in error, defendants below, is too long to be copied, but we think-its principal ground for a reversal of the judgment of the court below, if not its only gi’ound, is that the court below erred in its general finding upon the law and the evidence. If the finding is correct, the judgment which follows it is unquestionably correct; and we cannot say that the finding is not correct. The material facts of the case seem from the pleadings and the evidence to be substantially as follows: Originally, E. E. Muthersbaugh and H. D. Yeager jointly owned and jointly possessed the property in controversy, and Yeager and J. W. Muthersbaugh, the husband of E. E. Muthersbaugh, kept a livery stable on the premises. Afterward Yeager sold out his interest in the livery business to Muthersbaugh, but retained his interest in the real estate, and Muthersbaugh alone continued to carry on ■the livery business on the premises. Burke, who held a mortgage on the interest of Yeager, foreclosed the mortgage against Yeager and wife, and at sheriff's sale purchased Yeager’s and wife’s interest in the real estate, and obtained a sheriff’s deed conveying to him such interest. Burke of course then took the place of Yeager. Afterward, C. H. Finn, acting for his wife, K. D. Finn, procured from the county clerk of Osborne county, first the assignment of a tax-sale certificate, and then a tax deed for the property. The tax deed was executed November 3, 1882; and on November 6, 1882, Finn and -wife executed a quitclaim deed for the property back to E. E. Muthersbaugh. The original tax for which the property was sold was $1.50, aud Finn paid for the tax-sale certificate and the tax deed $4.07; and the asserted consideration for the quitclaim deed from the Finns to Mrs. Muthersbaugh is $100. It is claimed‘by the plaintiffs in error, defendants below, that when Finn procured the tax deed, Muthersbaugh and wife delivered to him, or to his wife, the possession of the property, and that when Finn and wife, three days afterward, executed their quitclaim deed for the property to Mrs. ■ Muthersbaugh, such possession was restored'to Muthersbaugh and wife; but under the findings of the court and the evidence, we would think that no such change of possession .ever occurred: Afterward Muthersbaugh, and wifé executed, a- deed of conveyance for the. property to W. PI. C. Eiley, but Eiley 'at the time, and- indeed all- the parties at all times, had full knowledge of Burke’s claim to the property. Eiley therefore took no greater interest in the property than Muthersbaugh ■ and wife had. None of the parties was aware that the taxes upon which- the tax deed was executed were outstanding against the- property until about the time that Finn procured -the- tax title; and Burke did not know it until some time after all the foregoing transactions had occurred; and he was using -a part of the stable during all the .time that these transactions were taking place. Burke’s petition in the court below alleged fraud and conspiracy on the par’t of Finn and wife and Muthersbaugh and wife in procuring said tax deed, and in pretending to transfer the possession of the property from Muthersbaugh and wife to Finn and wife, and back .again to -Muthersbaugh and wife,.and .-in executing the quitclaim deed for the property back to Muthersbaugh’s wife; and it alleged that all these things were done for the purpose of destroying his (Burke’s) tenancy-in-common -with Muthersbaugh’s wife, and of defeat ing his rights and interests in and to the property. This was denied by defendants’ answer, but as before stated, the court below found generally in favor of the plaintiff below and against the defendants below; and certainly the transactions look at least suspicious. No one ever questioned Burke’s right to the property until after all these questionable and suspicious transactions had taken place, and then Riley, under Muthers-baugh and wife, claimed the property. Under the pleadings and the general finding of the court below, it would certainly be fair to treat Burke and Mrs. Muthersbaugh - before her deed to Riley, not only as tenants-in-common, but also as jointly in the actual possession of the property; and the question of actual possession of the property by Burke is supported by some of the evidence. But even if Burke was not in the actual possession of the property, still he was in the constructive possession thereof; for the possession of his co-tenant, Mrs. Muthersbaugh, without any denial of his ( Burke’s) interest in the property, was also a possession by Burke. (Squires v. Clark, 17 Kas. 84, 87, and cases there cited.) And as before stated, Burke’s title was not questioned nor his possession disturbed, until some time after the execution of both the tax deed and the deed from Finn and wife to Mrs. Muthers-baugh.
We think the decision of the court below is correct. As a - general rule, a tenant-in-common will not be permitted to assert against his co-tenant a tax title acquired by him for taxes imposed on the joint property. (Blake v. Howe, 15 Am. Dec. 688, note, and cases there cited; Venable v. Beauchamp, 28 Am. Dec. 85, note, and cases .there cited. See also, as having some application, the cases of Keith v. Keith, 26 Kas. 27; Jones v. Comm’rs, 30 id. 278; Comm’rs v. Land Co., 23 id. 196.) Usually where a tenant-in-common purchases a tax title against the joint property, the purchase will be held to be a payment of the taxes, or the extinguishment of an adverse claim, or cloud, or lien, and will inure to the benefit of all the joint owners; and the purchaser will simply be entitled to be reimbursed by his co-tenants, and will have a lien upon the land for the amount equitably due from them. In the present ease, the court below required Burke to pay one-half — indeed, a little more than one-half — of all that the defendants below claim that Muthersbaugh and wife paid to Finn and wife for their tax-title interest in the property, and more than ten times the amount that was paid by Finn and wife for such tax-title interest ; and this was certainly all that equity would require from Burke.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
The plaintiff by this proceeding seeks to enjoin the collection of certain taxes levied for school purposes by School District No. 19, Hodgeman county, upon the lands of the plaintiff, situate within that district. This is the declared purpose of the proceeding, but if it can be maintained, it goes much farther, and is more serious and important than to merely defeat the collection of the taxes charged against plaintiff’s land. The objection to the tax is not that the rate is excessive or unequal, nor that the purpose for which it was levied was illegal, nor is it claimed that there were any irregularities in the manner of imposing it, but it really goes to the power of the district to levy any tax for school purposes, because of illegality in its organization. The complaint of plaintiff is that the authorities, in organizing the district, established the boundaries so as to embrace an unusual and unreasonable extent of territory, some of which must necessarily be and is very remote from the school house of the district. It will thus be seen that the plaintiff seeks to obtain a determination of the validity of the organization of the district, and is really assailing its corporate existence in an injunction proceeding.
Legislative authority to create and change school districts is given in the following language:
“ It shall be the duty of the county superintendent of public instruction to divide the county into a convenient number of school districts, and to change such districts when the interests of the inhabitants thereof require it, but only after twenty days’ notice thereof, by written notices posted in at least five public places in the district to be changed; but no new school district shall be formed containing less than fifteen persons of school age, no district shall be so changed as to reduce its school population to less than fifteen, and none having a bonded indebtedness shall be so reduced in territory that such indebtedness shall exceed five per cent, of their assessed property valuation.” (Laws of 1881, ch. 152, §12.)
In this statute there are limitations upon the power of the county superintendent to create and change school districts,, but there is no restriction as to the extent of territory that may be included within the district at the time of its organization, except that which is indirectly imposed in the provisions prohibiting the creation of a new school district containing less, than fifteen persons of school age. The legislature wisely left to the discretion and judgment of the county superintendent, the question of boundaries and extent of territory of school districts. In sparsely-settled portions of the state the districts will be necessarily larger than where the population is more-dense. Of course he should keep in view the beneficial purpose of the statute, and organize the districts so as to promote that purpose, and to fix the limits to suit the convenience of" the inhabitants, and change them “whenever the interests of’ the inhabitants thereof require it.” If the county superintendent abuses the power given him, and establishes boundaries, without regard to public convenience, and to the rights and interests of those within the limits of the district, and to be affected by its organization, a remedy is given by appeal to. the board of county commissioners. Here then is a general statute furnishing ample authority for the creation of the defendant district; and the petition of plaintiff discloses that School District No. 19, Hodgeman county, was organized in April, 1882, and since that time has elected officers, located a school-house site, levied and collected taxes, maintained a. school, and is in the full exercise of corporate power. Beyond question, then, the corporation has a defacto existence, and it may be that it was a de jure corporation; but whether it was regularly and legally organized, we do not, nor can we decide in this action. To maintain this suit, and to defeat the tax complained of, the plaintiff must establish, and the court must determine, that the organization of the district is illegal. This •cannot be done in the present action. 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. (Voss v. School District, 18 Kas. 467; School District v. The State, 29 id. 57; Stockle v. Silsbee, 41 Mich. 615; Clement v. Everest, 29 id. 22.) In the case last cited it is said that—
“ It would be dangerous and wrong to permit the existence of municipalities to depend on the result of private litigation. Irregularities are common and unavoidable in the organization of such bodies, and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons.”
We do not intend to decide that in organizing this district the county superintendent’s action was regular and legal. It is difficult to understand what considerations led him to include within the district such a scope of territory as appears by plaintiff’s petition to have been done. It may have been necessary in order to obtain the school population required by statute; or perhaps it was deemed essential to extend the limits so as to secure sufficient taxable property, which, under the limitations imposed by law in levying school taxes, would produce a fund adequate to provide suitable school facilities and maintain an efficient school; or possibly it was within the intention of the authoi'ities to establish several schools within the district, though the plaintiff alleges that but one school site has been established, and but one school maintained. Whether these reasons, or any of them, moved the county superintendent 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 loarrcmto proceeding brought by the state.
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
Hatcher, C.:
This is an appeal from a judgment in a civil action brought by the plaintiffs, Dale and Helen Fields, husband and wife, against the defendants, Blue Stem Feed Yards, Inc., Anderson Cattle Company, Inc. and Cattlemen’s Feed Lots, Inc.
The action sought the recovery of permanent damages for the depreciation in value of plaintiffs’ home caused by the operation of the defendants’ livestock feed lots. The appellees also sought damages for pain and suffering and mental anguish and further sought an order permanently enjoining the defendants from operating their feed lots. At tihe close of all the evidence the court sustained a demurrer by the Anderson Cattle Company to the plaintiffs’ evidence. The case was tried to a jury and the jury answered certain special questions and returned a general verdict in favor of the appellees for a total of $4,500, assessing $3,000 as damages against Cattlemen’s Feed Lots and $1,500 as damages against Blue Stem Feed Yards.
This particular appeal was filed by the Blue Stem Feed Yards challenging certain instructions given by the jury and certain special questions, some of which were given and some refused.
At the outset we are confronted with the appellees’ motion to dismiss the appeal for the reason that the right to appeal was governed solely by the provisions of G. S. 1949, 60-3314 which reads:
“When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he complains, he shall within twenty days after the notice of appeal is filed with the clerk of the trial court, .give notice to the adverse party, or his attorney of record, of his cross-appeal and file the same with the clerk of the trial court, who shall forthwith foreward a duly attested copy of it to the clerk of the supreme court.” (Now K. S. A. €0-2103 [h].)
This is tbe fourth appeal arising out of the same pleadings, trial, findings of fact, general verdict and judgment. The first case considered was Fields v. Anderson Cattle Co., 193 Kan. 558, 396 P. 2d 276, in which the Fields were appellants and the three defendants were appellees. This case was heard and determined on its merits. The second appeal was also styled Fields v. Anderson Cattle Co. and reported in 193 Kan. 569, 396 P. 2d 284. This appeal was taken by the Anderson Cattle Company and the Blue Stem Feed Yards. It was dismissed. The court stated in the syllabus:
“If an appellee desires a review of rulings and decisions of which he complains he must file a cross-appeal as provided by G. S. 1949, 60-3314. A second direct appeal cannot be used as a substitute for a cross-appeal.”
The third appeal was filed by the Fields and dismissed on their motion.
The appellant, Blue Stem Feed Yards, Inc., suggests that a cross-appeal could not be taken on the issues here presented because it first had to exhaust its remedy by way of a motion for a new trial. The suggestion is without merit.
Where one party to a judgment appeals from matters which may be reviewed without a motion for a new trial, the opposing party, if aggrieved by any rulings or decisions, may cross-appeal without first filing a motion for a new trial, even though a motion for a new trial was a prerequisite to an appeal in certain cases under the old code.
In Walker v. S. H. Kress & Co., 147 Kan. 48, 75 P. 2d 820, we held:
“Where a jury is unable to agree and a mistrial is declared and a demurrer to plaintiff’s evidence has been overruled, from which ruling the defendants appeal, the plaintiff is not precluded from having a review, on a cross-appeal, of orders excluding testimony simply because she filed no motion for a new trial, when she has otherwise complied with the requirements of the statute for a cross-appeal.” (Syl. 4.)
We also stated beginning on page 55 of the opinion:
“. . . The real question is whether, after a final order, to wit, the overruling of a demurrer to evidence, and an appeal from such order, the appelleeshall be denied the right to a review of an order excluding testimony, which testimony is not involved in the ruling on the demurrer, but the competency of which will again become an issue in the trial, simply because appellee filed' no motion for a new trial, when under the circumstances she in fact never had an opportunity to file such a motion. We think not. . . .
“It is further our opinion the statute on cross-appeals, applicable to the instant appeal (Laws 1937, ch. 268, § 4), contemplates such right of review.
“It is not contended plaintiff has failed to comply with the procedure prescribed by the statute for obtaining such review.” (See, also, Schumacher v. Rausch, 190 Kan. 239, 372 P. 2d 1005.)
This appeal was under the old code. It might, therefore, be suggested that had appellant desired a ruling on a motion for new trial it could have made such application and had the trial court corrected any of the alleged errors, it could have amended its notice of cross-appeal or abandoned its contentions. In Mathias v. Dickerson, 179 Kan. 739, 298 P. 2d 219, it is stated:
“At the outset we pause to note a contention, based on the premise the initial notice of appeal is limited to error in rendition of the judgment only, that defendant is not entitled to a review of trial and post trial errors. Prior to the-hearing of the cause defendant sought and obtained permission of this court to amend his notice of appeal to include alleged errors in the overruling of his-motion for a new trial and all other adverse orders and rulings. Thereafter he amended his notice accordingly. In that situation plaintiff’s motion to dismiss the appeal, regardless of its merit at the time it was filed, cannot now be upheld. See G. S. 1949, 60-3310 and our decisions (McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 122 P. 2d 787; Boss &. Brown, 132 Kan. 86, 88, 294 Pac. 878) holding that, where a valid appeal has been taken from a judgment, this court will permit the notice of appeal to be amended so as to include an appeal from the order overruling the motion for a new trial.” (p-740.)
An appeal does not prevent the trial court from considering questions presented on a motion for a new trial.
In Carr v. Diamond, 192 Kan. 377, 379, 388 P. 2d 591, we said:
“An appeal to this court does not of itself operate as a stay of further proceedings in the trial court. The filing of a supersedeas bond under the provisions of G. S. 1949, 60-3323, will stay the execution of a final judgment but it does not stay other proceedings in the trial court. The trial court may proceed to set aside or correct its judgment or grant a new trial. (Barstow v. Elmore, 177 Kan. 30, 276 P. 2d 360.)”
We adhere to the rule announced in Fields v. Anderson Cattle Co., 193 Kan. 569, 396 P. 2d 284.
The appeal is dismissed.
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 the trial court’s following orders and judgments,
1. The order setting aside the general verdict in the first case for $3,800.00 in plaintiff’s favor and the jury’s answers to special questions and granting defendant a new trial;
2. The order denying permission to plaintiff to file his second amended petition including $7,500.00 exemplary and punitive damages and ruling that plaintiff might file the amended petition if he made no claim for exemplary and punitive damages;
3. The order overruling and denying plaintiff’s motion to conform the pleadings to the evidence and include the $7,500.00 exemplary and punitive damages;
4. Accepting and adopting the second jury’s verdict of $989.00 for plaintiff and entering judgment for that amount; and
5. The order overruling plaintiff’s motion for new trial in the second case;
all being entered in an action to recover damages resulting from alleged fraud and deceit in the sale of a purported 1959 Diamond-T truck by defendant to plaintiff.
There have been two jury trials. The first trial resulted in a $3,800.00 verdict. This verdict was set aside and a new trial granted by the trial court’s order. On retrial, a verdict and judgment was entered for $989.00.
In April 1961, the defendant sold plaintiff a used 1959 Diamond-T truck or tractor for $10,000.00, of which $7,000.00 was paid in cash, and the balance paid by a trade-in of plaintiff’s 1957 truck. It developed, however, that the engine, transmission and differential were not parts of that or any 1959 Diamond-T truck, nor were they even of 1959 vintage. They had been taken from a 1950 model White truck which the defendant had repossessed in 1957, and were comingled by the defendant with body parts of the 1959 Diamond-T in rebuilding or reconstructing the previously wrecked truck sold to plaintiff. A certificate of title was then obtained for the finished product as a 1959 Diamond-T tractor, and this certificate was assigned to the plaintiff at the time of his purchase.
The first jury found that plaintiff “was deceived by the defendant as to the truck he purchased,” while at the second trial, the jury found that the defendant had “knowingly concealed . . . material facts for the purpose of deceiving or cheating” the plaintiff.
The case was originally tried in January, 1963, and resulted in a verdict in plaintiff’s favor. On February 4, 1963, the trial court set this verdict aside and granted a new trial. In March 1963, the plaintiff filed a motion for leave to file his second amended petition containing, for the first time, a separate count for exemplary damages. This motion was overruled for the reasons that plaintiff’s first two petitions had not contained such allegation, that his claim was substantially changed thereby, and that it conformed neither to the facts proved in the first trial nor to those which plaintiff indicated he would present at the subsequent trial.
The trial court did, however, permit plaintiff to file a third amended petition spelling out in some detail the facts which he alleged the defendant had knowingly concealed from him for the purpose of deceiving and cheating him, and to induce him to purchase the truck.
The case proceeded to a second trial wherein the plaintiff moved to amend his pleadings to conform to the evidence by adding allegations that, because of defendant’s willful and intentional deception plaintiff was entitled to exempláry damages’ of $7,500.00. This motion was overruled.
As a general rule, amendments to pleadings are favored in law and should be allowed liberally in the furtherance of justice to the end that every case may be presented on its real facts and determined on its merits. (41 Am. Jur., Pleading, § 291, p. 490.) This principle has been followed in Kansas under both the old and the new codes of civil procedure. In Woods v. Nicholas, 92 Kan. 258, 140 Pac. 862, it was held:
“Amendments for the purpose of correcting mistakes or defects in pleadings that would promote justice and not substantially change the claims or defenses of parties should be liberally allowed.” (Syl. f I.)
Motions for leave to amend are addressed to the sound discretion of the court, but its discretion is not to be exercised arbitrarily or used to defeat the ends of justice. (41 Am. Jur., Pleading, § 293, p. 491.) In Rockey v. Runft, 191 Kan. 117, 379 P. 2d 285, we said:
“The power of discretion conferred by the provisions of G. S. 1949, 60-759, upon the trial court, is not an absolute or an arbitrary power, but a power of judicial discretion. Such discretionary power is granted under the statute in the furtherance of justice relative to the substantive rights of the parties, and not to impede justice with respect to such rights. . . .” (p. 126.)
Under the circumstances of this case, we believe the trial court erred in refusing to permit plaintiff to file his second.amended petition asserting a claim for punitive damages. The addition of such a claim would not, in our judgment, substantially change the cause of action. In Foster v. Humburg, 180 Kan. 64, 299 P. 2d 46, it is pointed out:
“While allegations of damages are essential in a petition, they do not constitute the ‘cause of action.’ The ‘cause of action’ is the wrong done, not the measure of compensation for it, or the character of relief sought. A ‘cause of action’ arises from a manifestation of a right or violation of an obligation or duty. . . . Damage is not the cause of action. It is merely a part of the remedy which the law allows for the injury resulting from a breach or wrong . . .” (p. 67.)
The Foster case was cited with approval in Jefferson v. Clark, 190 Kan. 520, 376 P. 2d 923, wherein this court said:
“Plaintiff argues strongly that the trial court committed error in not allowing him to amend his petition to add the cost for the damages to his automobile. We feel that the court erred in that decision. The case of Foster v. Humburg, 180 Kan. 64, 299 P. 2d 46, appears to be almost a “bay horse’ case on the point. There is no change of cause of action in the profered amendment. .. . (p. 524.)
Plaintiff’s lawsuit, from its inception, was based on one of the worst kind of admitted frauds. The amended petition on which the case was first tried alleged that the defendant had made false representations, intending that plaintiff rely thereon, which he did to his damage, and that fraud was thereby perpetrated upon the plaintiff. Evidence was introduced at the first trial which justified the jury in finding that plaintiff had been deceived by the defendant.
In Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130, the court said:
“The earliest Kansas eases indicate that damages, sometimes called exemplary, vindictive or punitive, are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. (Malone v. Murphy, 2 Kan. 250; Albert Wiley v. Keokuk, 6 Kan. 94; and Cady v. Case, 45 Kan. 733, 26 Pac. 448.) Such damages are allowed not because of any special merit in the injured party’s case, but are imposed by way of punishing the wrong-doer for malicious, vindictive or a willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. . . .” (p. 705.)
See also McWilliams v. Barnes, 172 Kan. 701, 242 P. 2d 1063, in which a recovery on punitive damage was allowed because of affirmative concealment.
In view of the facts shown here, we are of the opinion plaintiff should have been permitted to file his second amended petition containing the claim for exemplary damages, even though his motion for leave to do so was not filed until after the first trial. No surprise would have been involved, for the transaction remained the same. Nor can it be said the defendant would not have had ample time to meet the issue, for the second trial was not held until nine months after plaintiff’s motion to amend was overruled. We conclude that, in overruling plaintiff’s motion for leave to file his second amended petition, the trial court erred.
We believe that the plaintiff’s position on the admission of evidence relating to damages likewise has merit and requires our consideration.
The questions arise in this fashion: witnesses for the plaintiff testified that when the truck was sold to plaintiff in April 1961, it had a market value of from $3,000.00 to $3,500.00. On the other hand, defense witnesses stated that the truck had no established market value as of that time, but was worth whatever could be gotten for it. Premised on the defendant’s theory that the truck possessed no market value, the trial court admitted evidence showing how far the truck had traveled after its purchase and the gross revenue produced, but refused to admit rebuttal evidence offered by plaintiff to show net revenues, truck expenses and the trade-in value of the truck after nine months of operation. Plaintiff attacks these rulings as erroneous.
The general rule, sustained by the great weight of authority, is that where a purchaser has been defrauded by false representations as to the quality, value or condition of the property he buys, he may recover as damages the difference between the actual value of the property at the time of sale and the value it would have had if the representations had been true. (24 Am. Jur., Fraud and Deceit, § 227, p. 55; 37 C. J. S., Fraud, § 143, p. 477 et seq.) In common legal parlance, this is known as the “benefit of the bargain” rule and is followed in Kansas. In Epp v. Hinton, 91 Kan. 513, 138 Pac. 576, an action arising out of misrepresentation in the sale of land, the court said:
“The court adopted as the measure of damages the difference between what the property conveyed to the plaintiff was actually worth and what it would have been worth if it had been as represented. This is in accordance with the weight of authority. . . .” (p. 516.)
Our most recent case on this subject, Perry v. Schoonover Motors, 189 Kan. 608, 371 P. 2d 152, involved the sale of a used automobile, represented as new, where the purchase price was paid in part by a trade-in allowance. In this case, we said:
“It may therefore be said, in a damage action by a purchaser for fraud inducing the purchase, the measure of damages is the difference between the real value of the property and the value which it would have had if the representations had been true. This measure of damages applies without regard to the price paid, and, in the case of an exchange, without regard to the value of the property given in exchange by the party defrauded, although the price paid may properly be submitted to the jury as a fact to aid them in the assessment of damages. (37 C. J. S., Fraud, § 143, pp. 475, 477,478.)” (p. 613.)
See also Van Natta v. Synder, 98 Kan. 102, 104, 157 Pac. 432, and Cramer v. Overfield, 115 Kan. 580, 581, 223 Pac. 1100, 57 A. L. R. 1147 note.)
The real value or actual worth of property is established by evidence of its market value, unless the property has no established market value, in which case resort may be had to other evidence relating to matters which a reasonable buyer or seller would consider in concluding a contract of sale. (31A C. J. S., Evidence, § 183 [1], pp. 476-7.) Long ago this court spoke decisively on this point in St. L. K. & A. Rly. Co. v. Chapman, 38 Kan. 307, 16 Pac. 695, where it was said:
“. . . Where property has a market value the rule is strict, and requires only that value to be shown; but where it is shown that the property is without a market value, then the law allows the next best evidence to be given to ascertain its value . . .” (p. 309.)
In the later case of Kerr v. National Fire Ins. Co., 141 Kan. 393, 41 P. 2d 726, we held:
“Where personal property covered by an insurance policy had no market value, its real value, for the purpose of establishing amount of loss under the policy, may be determined from such data as is available, and cost, use and condition are proper elements for consideration.” (Syl. ¶ 2.)
See also Kennedy v. Heat and Power Co., 103 Kan. 651, 175 Pac. 977; Geselle v. American Home Fire Assur. Co., 146 Kan. 138, 68 P. 2d 1097.
The rule we have enunciated accords with the general rule stated in 20 Am. Jur., Evidence, § 372, p. 339:
“Where personal property is without market value, then the law allows the next hest evidence to be given to ascertain its value. In such cases, evidence as to cost and other considerations which may affect value or which tend to show its worth, actual, real or intrinsic, is admissible. . . .”
In the present case, the defendant contends that the truck had no market value when it was sold to the plaintiff, and his witnesses so testified. Even though this evidence was disputed by the plaintiff, whose witnesses ascribed a market value to the truck, we believe the defendant would be entitled to present evidence, under proper instructions, on his theory of value: provided, however, that such evidence be relevant and that it be made subject to proper rebuttal. Thus, we come to the crux of the evidentiary questions presented.
As to gross income, it seems clear to us that there is no plausible relationship between the actual value of the truck at the time the plaintiff bought it and what the plaintiff may have grossed from it thereafter. For this reason alone, we believe that it was error to admit evidence of the gross income derived from the truck after its purchase.
Furthermore, under the “benefit of the bargain” rule, recovery of damages is not dependent on whether or not the use of property which was misrepresented has proven profitable. A defrauded vendee is entitled to compensation for the contract he thought he was making and any advantage he would have obtained thereunder. (24 Am. Jur., Fraud and Deceit, §227, p. 56.) Accordingly, evidence of income, whether it be gross or net, is irrelevant and not admissible.
A somewhat different problem is posed by the admission of evidence showing the distance traveled by the truck subsequent to plaintiff’s acquisition thereof. While this evidence may have had some bearing on the usability and worth of the vehicle when sold, we believe plaintiff should have been given the chance to rebut it. Evidence relating to such matters as the truck’s performance while plaintiff used it, the extent of repairs and cost thereof, and the condition and value of the truck at the conclusion of plaintiff’s operation, would seem essential to a proper evaluation of the mileage figure, and it was, therefore, error for the court to exclude it.
Other errors are alleged by plaintiff, but in view of the decision we have already reached, we believe they require no discussion at this time.
In conclusion, we believe that a new trial should be granted as to all issues even though the plaintiff seeks to have it limited to the question of damages only. Especially, do we feel that fairness requires a new trial generally, since punitive damages will become an issue for the first time.
The judgment is reversed with instructions that a new trial be granted generally. | [
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The opinion of tbe court was delivered by
HortoN, C. J.:
On January 22, 1880, the city of Newton was declared by the public proclamation of the governor to be a city of the second class, and thereafter such city was subject to the provisions of article 11, ch. 122, Laws of 1876, relating to public schools. (Comp. Laws of 1879, pp.- 846, 850.) Prior to that time, the association of the inhabitants of the territorial school limits of the city of Newton, for public school purposes, was named and known as “School District No. 1, Harvey county, Kansas.” After that time, the public schools of said city possessed the usual powers of a corporation for public purposes, under the name and style of “The Board of Education of the City of Newton, of the State of Kansas.” (Laws of 1876, ch. 122, § 4.) The Board of Education of the city of Newton was substantially a continuance of “School District No. 1, Harvey county,” under a new name. All the property of School District No. 1 passed to the board of education of the city of Newton, and said board became subject to all the liabilities of the old corporation. In some respects, the board of education was vested with powers not conferred upon School District No. 1, but the merger of School District No. 1 into the board of education did not relieve the latter corporation from an obligation to pay the debts of the school district. Now a man or corporation may change his or its name between the time the cause of action arose and the bringing of the suit, but a corporation certainly loses none of its franchises or rights by such a change, when authorized by law. A corporation can recover by its new name a debt due before, and a creditor of the old corporation can recover his debt against the new corporation, if the latter takes all the rights, and is subject to all the liabilities of the old corporation which it supersedes or continues.
It is insisted, however, by the defendant, that the action of plaintiff commenced on August 16, 1882, against School District No. 1, and the judgment rendered therein against said school district is not valid against the board of education. .We think otherwise. A mistake was made in the name of the defendant, but the summons was served upon its president, and in legal contemplation the office he held clothed him with power to receive notice for and on behalf of the corporation; therefore the process was actually served upon the defendant and upon a person qualified to represent the defendant in respect to such service, and notice to him was notice to the corporation which he then represented. This, therefore, may be regarded as the case of a misnomer. The defendant failed to plead the mistake in abatement, or otherwise, and the judgment binds the corporation although sued by a wrong name. The rule seems to be well established, that where a corporation has taken no advantage of a variance from its name, either by plea or at the trial, it cannot arrest the judgment or reverse it on that account. (Angell and Ames on Corporations, 11th ed., 1882, §§ 650, 651; Insurance Co. v. French, 59 U.S. 404; Bank v. Jaggers, 31 Md. 38; Bank v. Eyer, 60 Pa. St. 436; Freeman on Judgments, § 154; Sherman v. Proprietors of Connecticut River Bridge, 11 Mass. 338; Guinard v. Heysinger, 15 Ill. 288.)
We do not think that the unsuccessful attempt made in the district court to substitute the board of education for the school district affects the original judgment. That judgment is binding upon the defendant, and the relief asked for in the subsequent proceeding may have been regarded by the district court as wholly useless and unnecessary. We perceive no injustice in requiring the defendant to pay for the school furniture which it has received and appropriated for public school purposes.
Upon the record, the agreed statements of the parties, and the evidence before us, the peremptory writ of mandamus will be awarded as prayed for.
All the Justices concurring. | [
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Per Ouriam:
The motion to quash the alternative writ of mandamus heretofore issued in this case will be sustained, upon the following authorities: The State, ex rel., v. McCrillus, 4 Kas. 250; The State, ex rel., v. Bridgman, 8 id. 458; Bridge Co. v. Comm’rs of Wyandotte Co., 10 id. 326; Troy v. Comm’rs of Doniphan Co., 32 id. 507. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
The appellants in this case were accused of assault-and-battery, and 'tried, first; before a justice of the peace of Washington county, Kansas, and later in the district court of that county, where they were convicted, and each was adjudged to pay a fine of $10 and costs. From this judgment they prosecute an appeal to this court. Their principal complaint is, that the court refused to permit them to cross-examine the complaining witness regarding her motives and interest in the prosecution, and in excluding testimony given by her, which they claim would have shown such bias, prejudice and ill-will toward the defendants as must necessarily have affected her credibility.
The facts, briefly stated, are these: On March 24, 1883, Mary C. Murphy was living with her husband on a farm adjoining that of the defendant I. S. Collins; a herd of cattle belonging to Collins strayed away from his farm and went upon the premises of Murphy, where they were pursued by I. S. Collins and his son, Charles Collins; when Charles Collins undertook to go upon the Murphy farm, Mrs. Murphy came out and forbade him to come out on their premises, and resisted him in his effort to drive the cattle away from Murphy’s and back to the Collins farm, whence they had strayed. After some scolding between the parties, it is claimed by Mrs. Murphy that Charles Collins struck her on the shoulder and head, and that in doing so, he was encouraged, aided and abetted by his father, I. S. Collins. Immediately after this occurrence, Mrs. Murphy moved into Washington, the county seat of Washington county, where she resided for some time. This prosecution was not begun until August 14, 1883, and then it was instituted before a justice of the peace at Hollen-berg, fourteen miles distant from Washington, where the complaining witness resided.
It appears that about one week prior to the commencement of this prosecution by Mrs. Murphy, I. S. Collins began a civil suit against her husband, son and others to recover ten thousand dollars in damages. For the purpose of throwing doubt upon the credibility of the witness, Mrs. Murphy, the defendants sought to show that this action was not prosecuted in good faith, but rather through malice, and was an outgrowth of the civil suit and of the bad feeling engendered by the bringing of that suit ; that the criminal action was not instituted by her for nearly five months after her difficulty with the Collinses, and that she did not regard the defendants as guilty of any offense, and only caused their airrest and prosecution at the instance, and in pursuance of an arrangement with the defendants in the civil suit brought by Collins; that she did not request the county attorney, who had his office in the city where she resided, to prosecute the action, but that it was conducted before the justice of the peace and prosecuted by private counsel retained by the defendants in the civil suit, and the same counsel employed by them to defend in that suit; that before the criminal action was commenced she and her husband had changed their residence from Washington to Dickinson county, but that as soon as the civil suit was begun, the defendants herein brought her back to Washington county and procured and induced her to bring the criminal action, and thus aid them in the defense of the civil action; also, that soon after the alleged assault she gave a statement of the facts differing materially from the testimony given by her on the trial. She was the principal witness upon the part of the state, and after her examination-in-chief had been completed, the defendants undertook upon cross-examination to inquire into the foregoing facts, and also her state of mind toward the defendants.' A great many questions were asked her and in a variety of forms, all of which, upon objection by the state, were excluded by the court. She was interrogated in substance as follows: Whether soon after the alleged assault she consulted the county attorney about the matter, and gave him a different statement of the facts from the one now made by her; whether on such statement he advised her not to prosecute the defendants; whether she purposely concealed the fact of the prosecution from the county attorney; whether she refused to notify the county attorney of the commencement of the prosecution; whether the county attorney was present at the trial before the justice of the peace; whether she did not employ private counsel to prosecute this criminal action; whether prior to the commence ment of the civil action against her husband, son, and neighbors, by the defendant I. S. Collins, she had made any complaint about the alleged assault upon her; whether she would have prosecuted this action at all, if said civil action had not been commenced, and if she was not actuated by malice toward the plaintiff in the civil suit; whether the private counsel employed by her to prosecute the criminal action was not paid by the defendants in the civil action; whether the private counsel was not the same that was employed to defend her husband, son and neighbors in the civil action; whether the defendants in the civil action did not request, induce and procure her to bring this prosecution, and did not keep her in their families without expense to her, and did not twice take her to Plollenberg, the place of trial, all for the purpose of aiding them in the defense of the civil action by this prosecution ; and • also, why she waited almost five months after the alleged assault before commencing the prosecution.
The evidence called for by the foregoing questions was not competent or admissible as a justification or defense of the crime charged, but we think much of it was competent and proper for the purpose of showing the bias, prejudice, motives, interest and leanings of the witness. If the answers to the questions had been favorable to the defendants, as favorable, for instance, as the form of the questions would indicate the defendants desired or expected them to be, who can say that such testimony would not have materially affected her credibility with the jury? The testimony excluded by the court tended to show not alone the ill-will of the witness toward the defendants, but also that she was prompted and influenced to prosecute the defendants by her interest in and sympathy for the persons who had been sued for a large sum of money by I. S. Collins, and among whom were her husband and son. All of these facts are pertinent and- important, as bearing upon the credibility of .the witness.. ‘-‘A .party against whom a witness is produced has a right to show everything which may in the-slightest degree affect ■ his credit.” (Cameron v. Montgomery, 13 Serg. & R. 182.) Great-latitude island should be allowed in the cross-examination of a witness, as to his interest in the suit, his friendships or hostility toward the parties, his motives and prejudices.
In The State v. Krum, 32 Kas. 375, a case very similar to this one, Chief Justice HoktoN says: “ The general rule is, that anything tending to show bias or prejudice on the part of a witness may be brought out upon his cross-examination. The reason for this is, that such matters affect the credit due to the testimony of the witness, and therefore it is proper to indulge in this kind of inquiry.” (Wharton’s Criminal Ev., §§ 376, 476, 485; Wharton on Evidence in Civil Cases, §§408, 544, 545, 561; Batdorff v. Bank, 61 Pa. St. 183; Davis v. Roby, 64 Me. 430; McFarland v. The State, 41 Tex. 23; Morgan v. Freese, 1 Am. Law Reg. 92; 1 Greenl. Ev., § 449; Kellog v. Nelson, 5 Wis. 131.)
In the case last cited the court uses the following language:
“On a cross-examination of a witness, anything which shows his friendship or enmity to either of the parties to the suit is commonly a proper subject of inquiry. So also is anything which tends to show that in the circumstances in which he is placed he has a strong temptation to swear falsely. It is to be remembered that the jury are the sole judges of the credibility of the witnesses, and that whatever tends to assist them in the judgment which they are to form upon this subject ought not to be withheld from them.”
Counsel for the appellee practically concedes this much and agrees with this view of the ease, but he states that the theory upon which the objection to the testimony was made, was, that the witness had already admitted and testified that she entertained a feeling of ill-will toward the defendants, and therefore that it was not proper for the defendants to go into the details of such admitted facts. If the admission made by the witness in this regard had been as broad and inclusive as the testimony offered or called for by the questions asked, then the objection would have been well taken. The defendants, however, were entitled to know the character and extent of the feeling of enmity which the witness entertained toward them. The question of bias and prejudice, and how far her hostility toward the defendants may have affected her testimony were for the jury, and they cannot properly determine this until they learn the degree and intensity of the hostile feeling.
This precise question has been considered and determined in The State v. Dee, 14 Minn. 39. There it was insisted that while personal controversy and ill-feeling may be shown, yet the particulars thereof are not inquirable into; but the court say that—
“ The object of this kind of testimony is to show bias and prejudice on the part of the witness, for the purpose of leading the jury to scrutinize and pei'haps to discredit the testimony. If testimony of this character is to be received, it should be received in its most effective form, so that the purpose for which it is introduced may be best accomplished. A mere vague and general statement that hostile feeling existed would possess little force. It certainly must be proper to ask what the expression of hostility was, for the purpose of informing the jury of the extent and nature of the hostile feeling, so that they may determine how much allowance is to be made for it.”
Again, in this case, the defendants sought to show not only the malice and ill-feeling of the witness toward the defendants, but that she had an interest in the suit aside from what the ordinary witness would have, in this: that she had entered into an arrangement with the defendants in the civil suit by which she would prosecute the defendants, and thus aid them so far as it would, in the defense of that suit. This evidence was not embraced or covered by the mere admission of ill-will and hatred toward the defendants; and certainly it was competent to go to the jury to enable them in determining how far such interest may have swayed her mind, warped her judgment, and how far it may have colored or perverted the testimony given by her to the jury. ’
It follows that the ruling of the court in refusing to permit the questions affecting the credibility of the witness to be asked and answered was erroneous, and its judgment must therefore be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Fatzer, J.:
In this workmens compensation case, the claimant-appellant sought recovery of benefits for two different accidental injuries. One injury was alleged to have occurred to his cervical spine on November 17, 1962, and the other was alleged to have occurred to his low back on February 1, 1963. It was stipulated by all the parties that the claimant did suffer an accidental injury to his back on February 1, 1963, for which he was awarded temporary total disability compensation. No question is presented in this appeal concerning that award of compensation.
The sole issue presented is whether the claimant suffered an alleged accidental injury to his cervical spine on November 17, 1962. The district court found that the claimant “did not sustain an injury on or about November 17, 1962, to the cervical spine”; hence, this appeal.
The following is a summary of the claimant’s testimony before the compensation examiner. The claimant was 47 years of age, was five feet and four inches tall, weighed 113 pounds, and had an eighth grade education. He was employed in Friedeman s Service Store in Great Bend as a tire service man, where he had worked for seventeen years. He worked on tires, sold tires, mounted tires, and took tires off and mounted them on trucks and tractors, which was heavy labor. From time to time prior to November 17, 1962, he had received injuries to his body, and on November 17, 1962, he was changing a tire by using a tire changer and the bead of the tire suddenly broke loose and his body flew forward and his neck flew back, and he injured his neck. No one was present at the time of the injury, but he told the shop foreman, Herman Foos, about the accident. Ten or twelve days later the claimant went to see Dr. Kendall, of Great Bend, who took x-rays and concluded that his neck was injured, and prescribed traction treatments. While following the treatments, the claimant went back to work even though he was still suffering from a pain in his neck, because he had to support his wife. He continued the traction treatments, while he worked, but he told his employer, D. L. Friedeman, and the insurance adjuster, Charles Smith, about the November 17, 1962, accident. At the time he told Friedeman about the accident, two other men, Jerry Friedeman and Elmer Friedeman, were present. The claimant further testified he told Friedeman and the insurance adjuster about an accident involving his neck which occurred on December 10, 1961, and that he told the insurance adjuster he had hurt it again recently, but he did not think the insurance adjuster “wrote that down.”
D. L. Friedeman testified that he remembered a conversation with the claimant on December 6, 1962; that he recalled that conversation revolved around a back, not a neck, injury that claimant suffered on December 10, 1961, and not on November 17, 1962; that he completed a report with the claimant’s assistance, showing the date of accident as December 10, 1961, and that the claimant did not say anything about any other date he was injured, even though Friedeman asked him why he had waited so long to report it.
Charles Smith testified he interviewed the claimant December 7, 1962, about the alleged injury to his neck and the claimant told him he injured his neck on December 10, 1961, while changing a car tire and did not mention an injury occurring on any other date.
Was there substantial, competent evidence to support the finding of the district court that the claimant did not sustain an accidental injury on November 17, 1962? We think there was. The claimant concedes the evidence mainly concerns the disputed testimony that on December 6-7, 1962, he informed Friedeman and Smith of the accident and alleged injury in question. He further concedes there was evidence to find that he did not expressly notify Friedeman on December 6, 1962, and Smith on December 7, 1962, of the accident and injury in question. He contends, however, that this fact pertains only to the issue of notice, and does not go to the issue whether there was an accidental injury on November 17, 1962. In making this contention, the claimant recognizes the general rule of law that this court’s jurisdiction in compensation cases is limited to questions of law (K. S. A. 44-556), and if there is any substantial, competent evidence to support the district court’s finding, it must stand. (Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106; Beaver v. Tammany Industries, 180 Kan. 440, 443, 304 P. 2d 501; Phillips v. Shelly Oil Co., 189 Kan. 491, 370 P. 2d 65.)
In a workmen’s compensation case, the district court tries the ease de novo; it hears no new evidence, but takes the case on the transcript of proceedings before the compensation examiner and makes an independent adjudication of the facts and the law therefrom. It is not for the Supreme Court to say what testimony should be given credence and what evidence should be disbelieved. In Gangel v. Cook Sam Mill, 175 Kan. 673, 265 P. 2d 853, this court defined its duty in determining whether findings are supported by substantial, competent evidence, and said:
“This court has little concern with disputed questions of fact in ordinary lawsuits and none whatever in workmen’s compensation cases, except to ascertain whether the record contains any evidence which on any theory of credence, or want of credence, would justify the trial court’s finding or conclusion of fact. In considering the question involved in this case we must, of course, keep in mind that we have neither duty nor authority to weigh the evidence, and it is of no consequence that if we had been the triers of fact we might have reached a different conclusion than the trial court respecting the question involved. (Thorp v. Victory Cab Co., 173 Kan. 383, 246 P. 2d 273; Thorp v. Victory Cab Co., 172 Kan. 384, 240 P. 2d 128; Hill v. Etchen Motor Co., 143 Kan. 655, 656, 56 P. 2d 103; McMillan v. Kansas Tower & Light Co., 157 Kan. 385, 388, 139 P. 2d 854; Conner v. M & M Packing Co., 166 Kan. 98, 101, 199 P. 2d 458; Cooper v. Helmerich & Payne, 162 Kan. 547, 178 P. 2d 242.)” (l.c. 674, 675.)
The record reveals there was conflicting evidence whether tihe claimant reported the injury to his neck on November 17, 1962, to Friedeman and to Smith. The claimant testified he did, and they testified the only injury he reported to them was the one which occurred to his neck on December 10, 1961. While there was evi dence the claimant reported his visit to Dr. Kendall to fellow employees on the job, Friedeman testified he had no knowledge of the claimant’s visit to the doctor.
The claimant makes the point that the respondent had an opportunity to produce the testimony of Dr. Kendall, Herman Foos, Jerry Friedeman and Herman Friedeman, whose testimony might refute claimant’s statement that he informed those men about the November 17, 1962, injury to his neck. He argues that the failure of the appellees to call those witnesses, particularly Dr. Kendall and Herman Foos, entitled the claimant to a presumption that those witnesses would have corroborated his testimony. He cites and relies upon Fowler v. Enzenperger, 77 Kan. 406, 94 Pac. 995; Trust Co. v. Allen, 110 Kan. 484, 204 Pac. 747, and Henks v. Panning, 175 Kan. 424, 264 P. 2d 483.
While tins court is committed to the doctrine that the provisions of the Workmen’s Compensation Act should be liberally construed in favor of the workman with a view of effectuating its purpose, it must be remembered that the burden rests upon the claimant to prove the various elements that show his right to an award. (Burns v. Topeka Fence Erectors, 174 K. 136, 139, 254 P. 2d 285.) The claimant testified he reported the injury of November 17, 1962, to Herman Foos and that he went to Dr. Kendall about ten or twelve days after the injury in question, but he did not produce either Foos or Dr. Kendall to testify on his behalf although the appellees offered evidence tending to impeach his testimony about the accident. The claimant cannot thus secure a favorable inference that the testimony of Foos and Dr. Kendall would have been favorable to him when he himself had the burden to establish the accidental injury, and he failed to call those parties to testify on his behalf.
From a review of the record presented to this court, it cannot be said the district court acted unreasonably in finding that the claimant did not sustain an accidental injury on November 17, 1962, and we conclude there was substantial, competent evidence to support that finding.
It follows that the judgment of the district court must be affirmed. | [
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The opinion of the court was delivered by
Katjl, J.:
This is an appeal from an order and judgment of the district court of Ellis 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.
Examination of the record discloses that the facts pertinent to a consideration of this appeal are clearly stated by the district court in its findings and judgment which are quoted as follows:
“On March 17, 1965, the court examined the motion of movant filed February 23, 1965, challenging the validity of the judgment and sentences in the case in this court No. 13,398, entitled State of Kansas v. Donald Sanders and the court also examined the record in case No. 13,398, and the court finds that records in this case, No. 13,773, and in case No. 13,398 conclusively show that the movant is entitled to no relief; that it is not necessary to appoint counsel for movant; that there are no substantial issues of law; that there are no triable issues of fact; that the presence of defendant is unnecessary.
“The records in case No. 13,398 show that before arraignment on May 20, 1963, the defendant was represented by court appointed counsel who had full opportunity and did fully confer with the defendant; that the defendant upon arraignment and on advice of his attorney entered pleas of guilty to the offenses charged in counts 1, 2 and 3 of the information; that the defendant was sentenced on each count as provided by law, the sentences to run concurrently; that after the sentences were entered the defendant by his attorney made oral application for probation; that thereupon the court ordered the defendant placed on probation for five years under the supervision of the state parole officer; that on December 10, 1963, the defendant was brought before the court under a bench warrant and an order that the defendant show cause why his probation should not be revoked and at the hearing on said date, the defendant was duly represented by an attorney and after pleas for further probation on the defendant’s behalf, the court ordered that the defendant be given further opportunity and that his probation not be revoked; that on May 28, 1964, the defendant was again before the court for hearing of an order that he show cause why his probation should not be revoked at which time the defendant was represented by an attorney; that after evidence was introduced, the court found that the defendant had violated the terms of probation and that his probation should be revoked; that the court, on May 28, 1962, ordered revocation and ordered that the sentences entered on May 20, 1963, be carried out.
“The court finds that the defendant was represented by an attorney on every occasion; that the defendant did not appeal; that the defendant affirmatively waived appeal by applying for probation; that the defendant was free on probation throughout the time allowed for appeal and longer; that the movant’s other contention that he was denied jury trial is also without merit because he entered pleas of guilty and there was no occasion for a trial,
“The court makes all the foregoing findings a part of the court’s judgment and the court enters judgment denying the motion of the movant. The movant has 60 days, a9 provided by law, from the filing of this order, in which to perfect an appeal to the Kansas Supreme Court if the movant desires to appeal. . . .”
The only point briefed and argued by appellant is that the district court erred in not granting a full evidentiary hearing with petitioner’s presence.
In support of his position the appellant argues that he raised substantial issues of fact in his petition by asserting that he was not advised of his right to appeal and was not aware of his right to trial by jury and further that such amounts to a showing that petitioner was not effectively represented by his court appointed counsel at his waiver of arraignment and plea.
Subsections (/), (h) and (i) of Rule No. 121 of this court, adopted October 16, 1964, pertain to the procedural aspects of a motion to vacate sentence under K. S. A. 60-1507 and provide, in substance, that the district court shall hold a prompt hearing on such motions unless the motion, flies and records of the case conclusively show that the movant is entitled to no relief. It is further provided that the presence of the prisoner is required at the hearing if there are substantial issues of fact as to events in which he participated and further that the prisoner is entitled to appointed counsel if the motion presents substantial questions of law or triable issues of fact.
Rule No. 121 and subsections referred to reflect in substance the rule regarding the presence of the prisoner as stated by the United States Supreme Court in United States v. Hayman, 342, U. S. 205, 96 L. Ed. 232, 72 S. Ct. 263 under 28 U. S. G, § 2255 of the federal code.
The findings and judgment of the district court in this case reflect that after a careful review of the motion, files and records the court concluded that there were no substantial issues of law or triable issues of fact; that the presence of the prisoner was unnecessary and that it was not necessary to appoint counsel for movant.
The record conclusively shows that appellant, with the assistance of court appointed counsel, entered a plea of guilty to the charges for which he is presently incarcerated and thereafter he applied for and was placed on probation for a period of five years. Such a course of action indicates that appellant recognized the validity of the judgment and sentence and acquiesced therein, precluding appellate review of such judgment and sentence. State v. Mooneyham, 192 Kan. 620, 390 P. 2d 215, cert. denied 377 U. S. 958, 12 L. Ed. 2d 502, 84 S. Ct. 1640; State v. Irish, 193 Kan. 533, 393 P. 2d 1015. In State v. Robertson, 193 Kan. 668, 396 P. 2d 323, it was held that the rule applies regardless of whether appellant was specifically advised of his right to appeal or not. The sound basis of the underlying theory of the rule and the application thereof is stated at page 671 of the opinion as follows:
". . . He is precluded from appealing, not because he expressly and understandingly waived such right, but because he expressly and understandingly took action which, in and of itself, was inconsistent with an intention to appeal. Since his request for parole, and the consequent acquiescence in the judgment and its validity, was intentionally made, the fact that the appellant may not have understood that he would be bound by the reasonable and logical implications of his action, thereby foreclosing an appeal, is immaterial.”
Since appellant acquiesced in and recognized the validity of the judgment by seeking and seeming probation, he can not now challenge the validity of that judgment in a collateral proceeding under K. S. A. 60-1507. To hold otherwise would be to say that appellant can now accomplish a result in a collateral proceeding that he could not have attained by direct appeal.
It must be said that the court below properly concluded that appellant was not now in a position to attack the validity of his sentence and judgment and the order of the comt may be sustained on this ground alone.
We have, however, made a careful search of the record and fail to find any substantial justiciable issue of law or fact which goes to the validity of the sentence in this case. Under such circumstances the trial judge was not required to conduct a formal plenary hearing or to appoint counsel or have the movant present. (State v. Burnett, 194 Kan. 645, 400 P. 2d 971.)
Even though not briefed or argued we have considered other points stated by appellant and find no merit therein.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the Board of Examiners in Optometry from a judgment of the district court of Shawnee County, Kansas, permanently enjoining the Board from enforcing an order it made on the 18th day of April, 1963. By the terms of the Board’s order the appellee, Dr. J. G. Haines, was declared to have forfeited his certificate to practice optometry in the state of Kansas for failure to register the certificate with the county clerk of Wyandotte County, Kansas.
The controlling question is whether the Board of Examiners in Optometry had authority to take administrative action upon the facts in this case.
The parties have agreed upon the facts which may be stated as follows:
On the 9th day of September, 1957, Dr. J. G. Haines (plaintiffappellee), a citizen and resident of Kansas City, Wyandotte County, Kansas, having successfully passed his examination before the Kan sas State Board of Examiners in Optometry, was duly licensed as a “registered optometrist.”
The Board immediately after certifying Dr. Haines as a registered optometrist issued to him its official certificate No. 905. Imprinted upon the face of this certificate in the lower left-hand comer were the words: “This Certificate wets first registered in County of Wyandotte State of Kansas.” (Emphasis added.)
Upon receipt of his certificate of registration, Dr. Haines practiced optometry in Kansas City, Wyandotte County, Kansas. His office was in the Huron Building.
Dr. Haines did not file his certificate of registration with the county clerk of Wyandotte County as required by G. S. 1949 (now K. S. A.) 65-1503 until the 29th day of March, 1963.
Prior to the 18th day of April, 1963, a complaint was filed with the Board of Examiners by the Committee on Grievances of the Kansas Optometric Association, wherein various grounds were stated alleging that Dr. Haines had violated the optometry laws of the state of Kansas and the mies and regulations and the code of ethics as promulgated by the Board. The purpose for which the complaint sought to invoke the jurisdiction of the Board was stated as follows:
“The State Board of Examiners'in Optometry should, for the reasons herein stated, ‘ipso facto’ forfeit, and revoke the certificate of registration and the license to practice optometry of the said Dr. J. G. Haines as provided by law and particularly as provided by G. S. 1949 [now K. S. A.] 65-1503.”
Thereafter Dr. Haines was duly notified by registered mail and a hearing was had before the Board on the complaint.
After a full and complete hearing with all parties given full opportunity to present evidence, the Board handed down its decision by which it decreed, by reason of Dr. Haines’ failure to file his certificate of registration within thirty days after its issuance in violation of 65-1503, supra, that “said certificate of registration and license to practice optometry in the State of Kansas of the said Dr. J. G. Haines is of no force and effect and is void.”
A copy of the transcript of testimony introduced at the hearing before the Board and other proceedings in connection therewith are made a part of the agreed statement of facts.
Dr. Haines first attempted an injunction action in the district court of Wyandotte County, Kansas, where a motion to quash was sustained on the ground of improper venue. Thereafter the instant injunction action was filed by Dr. Haines in the district court of Shawnee County.
It was agreed the failure of Dr. Haines to file and record his certificate of registration with the Wyandotte county clerk, as required by the provisions of 65-1503, supra, was the only ground upon which the Board found the certificate of registration or license of Dr. Haines was forfeited by law. The Board does not assert that there were or are any other grounds for forfeiture or revocation of Dr. Haines’ license or certificate of registration.
The transcript of tire hearing before the Board discloses that Dr. Haines believed, because of the statement appearing on the left-hand comer of the certificate, that the Board of Examiners had already caused his certificate to be filed in Wyandotte County, Kansas, and thus did not present his certificate to the Wyandotte County clerk for filing until the 29th day of March, 1963, shortly after he was notified by the Board of Examiners of the charges made against him in the compláint.
The evidence discloses that a questionnaire was submitted to Dr. Haines prior to the issuance of his certificate of registration. The questionnaire with Dr. Haines’ answers reads as follows:
“IMPORTANT.
“Please Fill in the Following When You Return Your Photographs.
“1. Your full name as you wish it to appear on your Certificate.
James Gregory Haines
“2. The County in Kansas where you wish to register your Certificate first.
Wyandotte
“3. The papers for your application for membership in the Kansas Optometric Association and the Optometric Extension Program are enclosed. You are entitled to one year’s free membership in the State Association, American Optometric Association and the Extension Program.”
Therefore, when Dr. Haines exhibited his certificate of registration to the Board, he pointed out to the Board that his certificate contained the statement that it had already been registered in Wyandotte County, Kansas, and explained to the Board that he accepted that statement to be a fact.
For the reasons hereafter assigned, whether Dr. Haines upon receiving his certificate of registration from the Examining Board was justified in assuming and believing that his certificate had already been filed of record in the office of the county clerk of Wyandotte County, Kansas, is immaterial.
G. S. 1949 (now K. S. A.) 65-1503 provides:
“It shall be unlawful for any person to practice optometry in the state of Kansas without first obtaining a certificate of registration from the board of examiners. All recipients of said certificate of registration shall present the same for filing to the clerk of the county in which they reside, and shall pay a fee of fifty cents to the clerk for recording the same. Said clerk shall record said certificate in a book to be provided him for that purpose. . . .
“Any failure, neglect or refusal on the part of any person holding such certificate of registration or certified copy of such certificate of registration, to record the same as hereinbefore provided for thirty days after the issuance of said certificate of registration or from date of removal of residence shall ipso facta work the forfeiture of his certificate of registration, and it shcdl not he restored except upon the hearing of the board, who may require him taking a complete examination before the board, and the payment of ten dolíais to the Kansas state board of examiners in optometiy." (Emphasis added.)
G. S. 1949 (now K. S. A.) 65-1504 specifically enumerates those acts which the legislature has defined as unlawful.
The grounds for the suspension or revocation of certificates is set forth in G. S. 1961 Supp., (now K. S. A.) 65-1506. It reads:
“The board may, at its discretion, suspend or revoke the certificate of registration of any optometrist for any one of the following causes:
“(a) Conviction of the accused of any crime of the grade of felony, or one which involved moral turpitude; or
“(b) Any form of fraud or deceit used in securing a certificate of registration; or
“(c) Any grossly unprofessional conduct of a nature likely to deceive or defraud the puplic; or
“(d) The obtaining of any fee by fraud or misrepresentation; or
“(e) The employing either directly or indirectly of any person or persons commonly known as ‘cappers’ or ‘steerers’ to obtain business; or
“(f) To employ any person to solicit from house to house, or to personally solicit from house to house; or
“(g) The employment of any unregistered person to perform the work covered by this act; or
“(h) To advertise in any way in which untruthful, improbable or impossible statements are made, regarding treatment, cures or values; or
“(i) The use of drugs in the examination or treatment of the eyes; or
“(j) For habits of intemperance or habitual drunkenness, addiction to the drug habit, in a manner likely to destroy the accuracy of the. work of an optometrist; or
“(k) Affliction with a contagious or infectious disease, or one which is likely to destroy the accuracy of the work of the afflicted; or
“(Z) Failure to actively practice optometry for a period of three (3) consecutive years; or
“(m) For any cause for which the optometry board might refuse to admit a candidate to their examinations; or
“(n) For the violations of any of the provisions of this act.” (Emphasis added.)
G. S. 1961 Supp., (now K. S. A.) 65-1507 provides:
“Before any certificate shall be suspended or revoked, the optometry board shall mail to the holder of such certificate at the last known post-office address, a notice of the charges against him or her, and the holder of such certificate shall have ten (10) days from date of such notice, in which to file his or her answer, with the optometry board, and shall, if requested, be given a public hearing and opportunity to produce testimony in his favor and to confront the witness against him, and the suspension or revocation of any certificate of registration suspended or revoked for any of the above causes except those specified in (a) and (b) of section 65-1506 of the General Statutes of 1949, as amended, may be set aside upon application of the holder of such certificate at any time within six (6) months from the date of such suspension or revocation, upon proof being made to the satisfaction of the optometry board that the cause of such suspension or revocation no longer exists and that the applicant has been sufficiently punished. The optometry board shall not suspend any certificate of registration for a period of more than six (6) months. Before setting aside the suspension or revocation of any certificate, the board may, at its discretion, require the applicant to pass the regular examination given for applicants for certificates of registration.” (Emphasis added.)
The trial court found in favor of Dr. Haines and held the decision of the Board of Optometry declaring the forfeiture of his certificate of registration to be a nullity. It thereupon permanently enjoined the Board of Optometry from the enforcement of its order of April 18, 1963, declaring the forfeiture.
Appeal has been duly perfected by the Board.
The provisions of 65-1506 and 1507, supra, give the Board the right to “suspend” or “revoke” a certificate of registration, but nowhere in the act is the Board given any authority to “forfeit” a certificate of registration.
We think a careful analysis of the statutory sections heretofore cited and quoted, when read together, gives the Board of Examiners in Optometry no authority to declare a “forfeiture” of a certificate of registration under the provisions of 65-1503, supra. Whether a given set of facts should or should not result in a “forfeiture” under 65-1503, supra, is a matter for judicial determination.
Under the present facts we are not concerned with the Board’s authority to restore a certificate of registration which has been “forfeited.”
The Board argues that a license to practice optometry is a statutory privilege and not a property right. It contends the act or proceeding by which a board suspends or revokes a license to practice a profession constitutes an exercise of the police power of the state and is not the exercise of a judicial power. It argues there is no possible distinction between refusing to grant a license and in forfeiting or revoking one already granted; that the power exercised and the object of its exercise is in each case identical, that is, to exclude an incompetent or unworthy person from holding the license. Therefore, it is argued, the same body which may be vested with the power to grant or refuse to grant the license may also be vested with the power to revoke a license. (Citing, State v. Board of Medical Examiners, 34 Minn. 387, 26 N. W. 123; Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247; and Bohl v. Teall, 157 Kan. 239, 139 P. 2d 418.)
The appellants quote Bohl v. Teall, supra, as follows:
“. . . since the right to practice dentistry is a statutory privilege and not a natural right, the legislature may provide for the granting and revoking of licenses according to its own good will and pleasure, and that no constitutional inhibition impairs the force of its statutory declaration. . . .” (p. 241.)
There can be no quarrel with the decisions cited by the Board. The difficulty stems from the Board’s attempt to equate the “forfeiture” of a license under 65-1503, supra, with its revocation under the provisions of 65-1506 and 1507, supra.
Conceding the object to be accomplished by granting the Board authority to revoke a certificate of registration is to exclude incompetent or unworthy persons from holding a license, the facts which purport to authorize a “forfeiture” under 65-1503, supra, standing alone, are not sufficient to brand the holder of a certificate as incompetent or unworthy. The legislature has undertaken to denounce unlawful acts by persons and/or holders of a certificate of registration in G. S. 1949 (now K. S. A.) 65-1504, 1504a and 1504b. It then proceeds to enumerate the grounds for suspension for revocation of certificates in 65-1506, supra. These statutory provisions, which specifically list the unlawful acts and enumerate the grounds for suspension or revocation of certificates of registration, do not seem to mesh readily with the “forfeiture” provision in 65-1503, supra, where the holder of a certificate fails to file his certificate with the clerk of the county in which he resides for recording, upon which a charge of fifty cents is imposed by the statute. Furthermore, the provisions for recording the certificate of registration were not designed to protect the public, because protection of the public was the specific intent of G. S. 1961 Supp., (now K. S. A.) 65-1509. It is conceded Dr. Haines paid the annual renewal fee of $20 and his license was renewed by the Board each year he practiced until 1963. He also complied with the provisions of G. S. 1949, (now K. S. A.) 65-1509a regarding the annual education program.
If the legislature had desired to give the Board power to hear the facts and to decree a forfeiture of one’s certificate of registration to practice optometry, we think the legislature would have authorized it to decree a forfeiture in 65-1506 and 1507. Apparently the legislature did. not want the Board involved in a judicial determination . of facts which might or might not constitute a forfeiture. Particularly is that true where, as here, there are many legal factors bearing upon the question of forfeiture.
For the above reasons the Board had no authority at a hearing set up and conducted pursuant to the provisions of 65-1507, supra, to hear evidence and decree its conclusion that Dr. Haines had “forfeited” his certificate of registration for an infraction under the provisions of 65-1503, supra.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Plaintiff brought this action September 15, 1944, under our wrongful death statute (G. S. 1935, 60-3203, 3204) for the alleged wrongful death of her husband on September 29, 1942, for and on behalf of herself and the next of kin of her husband, claiming damages in the sum of $10,000. On October 25, 1944, defendant answered, denying the allegations of the petition, and alleged that the negligence of the deceased caused or contributed to his accident and fatal injury, and further alleged in paragraph 3: “The above named plaintff is not the real party in interest and said action is in fact prosecuted by the New Amsterdam Casualty Company,” and that plaintiff’s husband was working for a named employer operating under the Workmen’s Compensation Act; that the New Amsterdam Casualty Company, the employer’s insurer, assumed liability and paid plaintiff for the benefit of herself and child the sum of $4,000 plus $150 for funeral expenses; that plaintiff failed to institute any action, and by the terms and limitation of G. S. 1943 Supp. 44-504 such failure operated as an assignment of any cause of action to the employer of the deceased and its insurance carrier, who are the real parties in interest, and that they are barred of any recovery by way of reimbursement for money paid to plaintiff by reason of the death of her husband, and prayed that plaintiff take nothing by the action; that the name of her husband’s employer and its insurance carrier be substituted for that of plaintiff and that they take nothing by reason of the action.
Sometime thereafter- — -the date not shown in the record — plaintiff filed a motion to strike the third paragraph of the answer and the last portion of the prayer. This motion was heard on March 11, 1946, at which time plaintiff’s counsel orally admitted the correctness of the allegations contained in the third paragraph of defendant’s answer, but contended the same were incompetent and prejudicial and did not constitute a defense. The court sustained plaintiff’s motion to strike in its entirety. The defendant appealed from that ruling and this court, in an opinion filed in December, 1946 (Krol v. Coryell, 162 Kan. 198, 175 P. 2d 423), reversed the judgment of the trial court, striking out the third paragraph of the answer, but affirmed it in striking out the last-portion of the prayer of the answer. Thereafter defendant filed in the district court a motion for judgment in its favor on the pleadings for the following reasons:
“1. The petition, filed just two weeks before barred by statute, purports to state a cause of action in the name of Bernieta Peterson ‘for and on behalf of herself and the next of kin of Darryl J. Peterson,’ whereas the answer shows that the New Amsterdam Casualty Company is the real party in interest.
“2. The petition fails to allege that this action was commenced by or at the instance of or for the use and benefit of the New Amsterdam Casualty Company and fails to show that the action was in fact commenced in the name of the above named plaintiff for the use and benefit of the A. S. Elliott Fruit and Grocery Company and the New Amsterdam Casualty Company.
“3. Bernieta Peterson Krol has no interest in the outcome of this law suit, and the Supreme Court has determined that she had no cause of action at the time when this action was filed.
“4. No cause of action was properly alleged within the period of two years after the alleged accident, and it is now too late to amend the petition or substitute parties.
“5. The omission from the petition of any allegation showing the real party in interest is fatal herein.”
This motion was heard July 16, 1948, and taken under advisement to July 21, 1948, when it was overruled by the court. This appeal is from that ruling.
The point argued here by the appellant is the statute of limitations. The pertinent portion of the applicable section of our compensation law then in force (§ 1, ch. 50, Laws 1938, G. S. 1945 Supp. 44-504) may be stated or quoted as follows: When the death of a workman under the compensation law is caused by the tort of a third person the dependents of the workman shall have the right to take compensation under the act and pursue their remedy by proper action in a court of competent jurisdiction against the third party tort feasor, and in the event of recovery the workman’s employer shall be subrogated to the extent of compensation paid and medical aid provided by him to the date of such recovery. Such action “if prosecuted by the dependents ... of a deceased workman, must be instituted within eighteen months from the date of such injury. Failure on the part of . . . the dependents ... of a deceased workman to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which . . . the dependents ... of a deceased workman may have against any other party for such . . . death, and such employer may enforce same in his own name or in the name of the . . . dependents ... by proper action in any court of competent jurisdiction.”
Appellant points out that the action was not brought by the dependents of the workman within eighteen months after his death —indeed it was almost two years — and further points out that there was nothing in the petition to indicate that it was brought by her husband’s employer or its insurer.
It is contended by appellee that, having admitted the facts alleged in paragraph 3 of the answer at the time it was passed upon by the court this is sufficient notice to defendant that the action is being prosecuted by the employer’s insurer and on its behalf. In denying the motion to dismiss apparently the trial court took that view and quoted from Elam v. Bruenger, 165 Kan. 31, 193 P. 2d 225, where a similar question was before the court, and on page 38 of the opinion the court said:
“If the real party in interest was the employer, a simple disclosure of the fact would have dispelled all doubt and the cause could not properly have been dismissed on the ground it was barred under the statute.”
The court was not justified in relying upon that statement in this case for two reasons: The court was there talking about a disclosure by pleadings filed in the action and within the time the employer might have brought the action. Here plaintiff’s admission was by parol, which might give some uncertainty as to what was admitted as the brief of appellant here tends to show, and it was more than three years after the death of the workman for which the action was brought. In the Elam case this court held the action could not be maintained in the name of the dependents of the workman in a suit brought more than eighteen months after his death without an adequate disclosure that it was brought by and on behalf of the employer. We think the decision covers this action and that the court erred in overruling the motion to dismiss. While much more might be said and other cases analyzed and discussed, together with the changes made in the statute from time to time, we think such discussion unnecessary. The result is the judgment of the trial court should be reversed with directions to sustain the motion to dismiss the action.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This is an action on an automobile insurance policy to recover for damage to a 2,250 gallon tank alleged to be equipment of a newly purchased truck in substitution for the truck described in the policy. Plaintiff insured recovered and defendant company has appealed. The facts are not in controversy and are as follows:
On April 2, 1946, plaintiff, being the owner of a 1939 Ford tank- truck, -obtained from defendant a policy of insurance covering a “1939 Ford 2,250 Gallon Tank Truck” from loss by fire and, among other things, explosion. By the terms of the policy the word “automobile” included “its equipment and other equipment permanently attached thereto.” It further provided:
“If the named Insured who is the owner of the automobile acquires ownership of another automobile and so notifies the Company within thirty days following the date of its delivery to him, such insurance as is afforded by this policy applies also to such other automobile as of such delivery date:
“(a) if it replaces an automobile described in this policy, but only to the extent the insurance is applicable to the replaced automobile, . . .
“This insuring agreement does not apply: (a) to any loss against which the named Insured has other valid and collectible insurance, . . .
“exclusions
“This policy does not apply: . . . while the automobile is subject to any bailment lease, conditional sale, mortgage or other encumbrance not specifically declared and described in this policy; . . .”
The expiration date was April 26, 1947. On December 27, 1946, plaintiff made arrangements with an automobile dealer in Wichita, C. E. Jones, Inc., to purchase a new White truck, trading in the Ford truck exclusive of the tank, and to finance the balance of the purchase price in the amount of $2,595.80 by a conditional sales contract on the White truck. He directed Jones to remove the tank from the Ford truck and to attach it to the new White truck. On that day the tank was permanently detached from the Ford truck and the Ford was taken to a sales lot. The tank was placed on the White truck and some of the bolts put in place but not securely fastened or bolted down. The next day, December 28, 1946, plaintiff executed a conditional sales contract to Jones covering the balance due on the White truck. On this date he also procured from Service Fire Insurance Company (hereinafter referred to as Service Co.) a policy of insurance covering the White truck. This policy provided that “the word automobile shall also include its equipment and other equipment permanently atached thereto.”
During the night of December 30, 1946, while employees of C. E. Jones, Inc., were cutting the frame of the White truck to make the tank fit and were engaged in bolting it to the truck, an explosion occurred which damaged the tank and the White truck. The next morning defendant company was notified of the loss. On January 2, 1947, a bill of sale to the White truck was delivered to plaintiff. On or about January 15, 1947, plaintiff notified defendant to transfer coverage under the policy from the Ford truck to the White truck, but did not notify defendant of the conditional sales contract. Defendant requested plaintiff to furnish it with certain data with reference to engine number, etc., before the transfer could be made. On January 17, 1947, plaintiff received his certificate of title to the White truck. On or about January 20, 1947, defendant denied liability under the policy in question. On January 24, 1947, plaintiff procured another policy from the Service Co. to cover a “1947 White Trk with gasoline tank.” This policy listed an encumbrance of $3,749 on the property. Under its policy issued December 28, 1946, Service Co. paid plaintiff the sum of $209 for damage to the White truck. Plaintiff brought suit against defendant for the damage to the tank and for attorney fees and recovered judgment of $1,457.01 for damage to the tank and $500 for attorney fees.
In deciding the case the trial court rendered findings of fact and conclusions of law, four of the latter being as follows:
“conclusions op law
“1. Plaintiff had no insurable interest in the White truck December 28, 1946, because the Bill of Sale was not issued until January 2, 1947; however, there was a delivery of possession and the exercise of rights of possession by plaintiff acquiesced in by C. E. Jones, Inc., in directions of plaintiff to transfer the tank to the White truck and the following work order with operations in compliance with said work order.
“2. The defendant’s policy covered loss by explosion of a 1939 Ford 2,250 gallon tank truck.
“3. The White truck was substituted for the 1939 Ford and notice of substitution given within 30 days under defendant’s policy, together with proof of loss which were turned down; therefore, it would have been a useless thing for plaintiff to have notified defendant of the conditional sales contract to have same set out in the policy when defendant (plaintiff) was and is now claiming no coverage or loss suffered.
“4. The only valid insurance at time of the explosion was the defendant’s policy and the extended coverage on the tank being transferred to the substitute or replacement vehicle 1947 White truck makes the defendant company liable for the loss of the tank ($1,457.01) and reasonable attorney fees of $500.00 as found by the jury.”
While defendant company specifies eight assignments of error, yet, from its oral argument and brief, its contentions that its policy did not cover the tank as a part of the substituted White truck or its equipment, may be stated as follows:
1. The tank had not yet become a part of the White truck or its equipment at the time of the loss.
. 2. Plaintiff had no insurable interest in the White truck at the time of the loss.
3. If plaintiff had an insurable interest in the White truck and if the tank was part of its equipment at the time of the loss, then it was covered by the policy of the Service Co. and the automatic coverage clause in defendant’s policy was inapplicable because of its provision to the effect that such insuring agreement did not apply to any loss against which the named insured had other valid and collectible insurance.
4. There was no coverage under defendant’s policy because the White truck was subject to a conditional sales contract, of which defendant had no notice and which was not described in the policy.
In support of the lower court’s judgment, plaintiff argues that:
1. Under the terms of defendant’s policy he was insured against damage to his 2,250 gallon tank by application of the policy provision extending automatic insurance to replacement automobiles.
2. He is not barred from recovery on account of the provision against other insurance for the reason that on the date of the explosion he had not yet obtained a bill of sale and certificate of title to the White truck and therefore on that date had no insurable interest in it, and as a result it cannot be said that as of December 30, 1946, there was other valid and collectible insurance in existence.
3. He is not barred from recovery on account of the provisions in defendant’s policy against encumbrances for the reason that the 2,250 gallon tank is not described as a part of the security under the conditional sales contract in question, and therefore there was no encumbrance on the specific property for the damage to which this suit was brought, and
4. In any event, defendant would be liable for the damage to the tank under the thirty-day automatic extension provision of defendant’s policy, notwithstanding the encumbrance, because such provision does not specifically exclude encumbrances on the replacement automobile during the thirty day period within which plaintiff was to notify defendant of such replacement automobile.
There are several avenues of approach to the various questions raised, but in our opinion the proper solution of the problem rests in the answers to three fundamental and underlying questions.
Under the facts of this case, did the White truck and its equipment come under the automatic insurance clause of defendant’s policy? We think so. That clause, supra, provided automatic coverage on the replacement vehicle as of delivery date. Insured relinquished possession of the Ford truck, accepted delivery of the White truck and within the meaning of the automatic insurance clause acquired ownership of the White truck on December 27, and therefore had an insurable interest in it and its tank equipment, although the latter had not been completely fastened or bolted down at the time of the explosion on December 30.
For purposes of the Service Co. policy, taken out on December 28, did insured have an insurable interest in the White truck and the tank on December 30? He argues that he did not (and the lower court so found) for the reason that as of that date he had not yet received a bill of sale and a certificate of title. Sorenson v. Pagenkoph, 151 Kan. 913, 101 P. 2d 928; Sims v. Sugg, 165 Kan. 489, 196 P. 2d 191; Morris v. Firemen’s Ins. Co., 121 Kan. 482, 247 Pac. 852, 52 A. L. R. 696; Cory v. International Indemnity Co., 124 Kan. 677, 261 Pac. 573; Bradley v. Retailers Fire Ins. Co., 126 Kan. 27, 267 Pac. 23; Barton v. Mercantile Ins. Co., 127 Kan. 271, 273 Pac. 408. We find no fault with those decisions, but they are not in point to the case at hand for the reason that they were either possessory actions or else the question of insurable interest was brought in issue by virtue of a failure to comply with the regulatory and penal provisions of the statute governing the sale and exchange of automobiles. Furthermore, there is no claim that insured violated any of the provisions of G. S. 1947 Supp. 8-135 so as to affect adversely his title to the White truck. A person may actually own an automobile and thus have an insurable interest in it and yet not have legal evidence of title. Insurable interest has been defined as:
“The principle may be stated generally that anyone has an insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction.” 29 Am. Jur., Insurance, § 322, p. 293.
It is argued that the Service Co. policy covered only the White truck itself — and not the tank. However, it provided that “the word automobile shall also include its equipment and other equipment permanently attached thereto.” Under all of the facts and circumstances we have no difficulty in holding that for the purposes of the Service Co. policy issued on December 28 insured had an insurable interest in the White truck and tank.
Holding as we do in the above two situations, what effect did the taking out of the Service Co. insurance have on the liability of defendant under the automatic extension provision of its policy? Included in this very provision is the further proviso:
“This insuring agreement does not apply: (a) to any loss against which the named Insured has other valid and collectible insurance, . . .”
That such restrictions in fire insurance policies are valid is beyond dispute. Bodine v. Farmers Alliance Ins. Co., 136 Kan. 662, 17 P. 2d 934; 29 Am. Jur., Insurance, § 731, p. 566; 45 C. J. S., Insurance, § 533, p. 269.
It is argued that paragraph 19 of defendant’s policy recognizes other insurance and provides in effect for a prorating of the liability in such cases. The only trouble with that argument, however, is that the automatic insurance provision for the replacement vehicle is the one with which we are here concerned, for if it were not for such provision defendant’s liability would have been extinguished when insured parted with possession and ownership of the Ford truck, and this provision contains the express restriction, supra, respecting other insurance. From the record before us it therefore appears that as of the date of loss the insured had other valid and collectible insurance, the effect of which is that such liability as would have otherwise attached under the automatic coverage provision of defendant’s policy was extinguished. Holding as We do, it becomes unnecessary to discuss defendant company’s other contention with respect to the conditional sale contract on the replacement vehicle.
From what has been said it therefore follows that the judgment of the lower court is reversed, with directions to enter judgment in favor of the appellant. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for personal injuries sustained by plaintiff, alleged to have resulted from the defendants’ negligence in handling an automobile in which plaintiff was riding so that it was turned over, with the result plaintiff was injured. In plaintiff’s second amended petition the facts were pleaded in three causes of action. The trial court sustained defendants’ motions to strike the second and third alleged causes of action. These motions were sustained for the reason the court held that there was but one cause of action. Counsel for plaintiff then filed a third amended petition.
To this the defendants severally moved to strike one paragraph and that the remainder of the third amended petition be made definite and certain in a number of particulars. Counsel for plaintiff opposed those motions and they were overruled. Defendants then demurred to the third amended petition upon the ground that it did not state facts sufficient to constitute a cause of action. These demurrers were sustained. Plaintiff has appealed from the order of the court striking the- second and third purported causes of action in the second amended petition, and also has appealed from the ruling of the court sustaining the demurrers of the defendants to the third amended petition.
The difficulty of the court considering the appeal is that there are no specifications of error in the abstract as required by our Rule 5, the pertinent part of which reads:
“The appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered.”
(See DuPont v. Lotus Oil Co., 168 Kan. 544, 213 P. 2d 975, and authorities cited therein.) Also, the brief does not contain a statement of the legal questions involved as required by our Rule 6, the pertinent portions of which read:
“(3) The brief for appellant shall contain: (b) A statement of the question involved, or separately numbered statements of the several questions involved, in very brief and very general terms, to enable the court to acquire immediate comprehension of the nature of the controversy.”
For these reasons the appeal will have to be dismissed. Notwithstanding that, we have examined the record and feel confident that we would have to affirm the judgment of the trial court if the case were not dismissed.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
While these cases were presented together in the trial court and consolidated and heard together here, we think it best to deal first with case No. 37,725. The legal question presented by the appeal pertains to the right of plaintiffs to maintain the action as the real parties in interest and arose as follows:
In their second amended petition plaintiffs alleged that on February 5, 1948, and for some time prior thereto, they were doing business at 807 Union street in the city of Coffeyville under the name of Mehl Bros. Sheet Metal Works; that adjoining their place of business on the north defendant was doing business at 805 Union street as Carter Auto and Electric Supply; that on February 5, 1948, defendant negligently caused or permitted a fire to originate in his place of business, which spread to the business of plaintiffs, resulting in damages to the plaintiffs in the sum of $17,570.03. Acts of negligence were detailed as well as the property destroyed or damages making up the sum for which the action was brought. Defendant’s demurrer to the petition was overruled and he answered, denying seriatim the acts of negligence alleged; and further answering, in paragraph 3, alleged “that plaintiffs have no legal right to maintain this action because they are not the real parties in interest. That the damages alleged and set up by the plaintiffs in their petition was fully covered by insurance policies, and said damage, if any, sustained by said plaintiffs by reason of said fire have been fully paid by said insurance companies, . . .” Plaintiffs moved to strike from the answer all of paragraph 3 (and another not material here) for the reason that it was irrelevant, immaterial and incompetent, and in the alternative asked for an order requiring defendant to make the paragraph more definite and certain in several particulars. This motion was heard by the court and overruled. No appeal was taken by plaintiffs from that order. Later the plaintiff filed a reply consisting of a general denial.
Thereafter plaintiffs filed a “Motion for an order to determine questions of law in advance of trial and in alternative for separate trial on questions of law and fact.” This set out that plaintiffs in their petition had asked for damages in the sum of $17,570.03; that defendant, in paragraph 3 of the answer, claimed that plaintiffs had been fully compensated for their damages and therefore were not the real parties in interest, and recited “plaintiffs hereby offer to stipulate the following amounts,” aggregating $15,564.19, which had been paid by the several insurance companies. The motion continued:
“Plaintiffs further state to the court that this action is brought and maintained by them for the use and benefit of their insurance companies to the extent that said insurance companies have been required. to compensate plaintiffs for their losses. That in the event plaintiffs recover any sums of money from defendant, that they will hold as trustee for said insurance companies in respect to such part of the money recovered as the insurance companies have been compelled to pay plaintiffs.”
It moved the court to determine in advance of trial:
“1. In view of the pleadings and the statements and the admissions contained herein, does paragraph 3 of defendant’s answer constitute a valid defense in this action? '
“2. Whether or not at the trial of this action the court will admit evidence in support of paragraph 3 of defendant’s answer?
“In the event the court determines that paragraph 3 of defendant’s answer constitutes a valid defense in this action and that at the trial of this action the court will admit evidence in support of paragraph 3 of defendant’s answer, plaintiffs move the court for an order requiring a separate trial to determine the issue of whether plaintiffs are or are not the real parties in interest.”
The motion was not verified, and defendant did not accept plaintiffs’ offer to stipulate. After a hearing upon this motion the court made findings as follows:
“1. The court finds that the plaintiffs have stated and admitted in court that a portion of their loss has been compensated by their insurance companies; that this action is brought and maintained by them for the use and benefit of their insurance companies to the extent that said insurance companies have been required to compensate them for their losses; that in the event that plaintiffs recover any sums of money from defendant that they will hold as trustee for said insurance companies in respect to such part of the money recovered as the insurance companies have been compelled to pay plaintiffs.
“2. The court further finds that in view of said admissions, allegations and statements, that plaintiffs are real parties in interest within the meaning of section 60-401 General Statutes of Kansas, and have a right to maintain this action in their own names.
“3. In view of the pleadings, the statements and admissions contained in plaintiffs’ motion to determine questions of law in advance of trial, paragraph 3 of defendant’s answer to plaintiffs’ third amended petition, does not constitute a valid defense in this action. That paragraph 3 of defendant’s answer to plaintiffs’ third amended petition is irrelevant, immaterial and prejudicial, that therefore paragraph 3 of said defendant’s answer should be ordered stricken.
“4. That upon the trial of this action, evidence in support of paragraph 3 of defendant’s answer to plaintiffs’ third amended petition will not be admitted.”
Judgment was rendered in harmony with these findings and defendant has appealed from the findings and judgment.
The correctness of the court’s ruling in refusing to strike paragraph 3 from defendant’s answer is not before us, since plaintiffs have not appealed therefrom. It may be said, however, the ruling of the court was in accord with our holding in Klingberg v. Atchison T. & S. F. Rly. Co., 137 Kan. 523, 21 P. 2d 405.
While subdivided into separate points for argument, appellant’s over-all contention is that the court erred in making the findings and reaching the judgment from which the appeal is taken upon the unverified motion of plaintiffs, which included an offer to stipulate, which was not accepted, and at a hearing at which no evidence was offered. The point is well taken. We have no occasion here to write a thesis upon the question of how a plaintiff should bring an action in tort for damages to his property, which was insured. The matter is discussed at length in 26 C. J., Fire Insurance, §§ 629 to 638, and 46 C. J. S., Insurance, §§ 1209 to 1215, inclusive, where many cases are cited, including all, or substantially all, of our own. Appellees cite us to no case, and our own research has disclosed none, in which the procedure used in this case was followed in the trial court and approved on appeal. Our General Statutes 1935, chapter 60, so far as here pertinent, provides that an action must be prosecuted in the name of the real party in interest (§ 401); that all parties having an interest in the subject matter of the action and in obtaining the relief sought may be joined as plaintiffs (§ 410); if one refuses to join as a plaintiff he may be made a party defendant (§412), and that as a matter of practice the question, if shown by the petition, may be raised by demurrer; but if it does not show on the face of the petition it may be raised by answer-. In this case the defect did not show upon the face of the petition and was raised by answer.
From what has been said the judgment of the trial court should be reversed. It is so ordered.
In case No. 37,724 plaintiffs were conducting a business at 801 Union street in the city of Coffeyville adjoining the place of business of the defendant on the south. Their property was damaged in the same fire mentioned in case No. 37,725 and the plaintiffs brought the same kind of an action against defendant. The decision here is controlled by the decision in case No. 37,725.
The judgment of the trial court is reversed. | [
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The opinion of the court was delivered by
Wedell, J.:
The principal question presented for review is whether the trial court erred in granting plaintiff, the husband, a divorce.
A review of the record discloses that although appellant attacks the orders overruling her demurrer to plaintiff’s evidence and various motions the principal issue presented in all the rulings is whether the evidence justified the granting of a divorce on the ground of either gross neglect of duty or extreme cruelty. The court granted a divorce on both grounds.
Appellant requested that appellee be required to file a bill of particulars. He did so. We shall not set it out. In our opinion allegations contained therein are precisely such as the legislature intended should not be made a part of the public records unless that be actually necessary when it enacted G. S. 1935, 60-1519. The purpose of this statute received the consideration of this court in Stegmeir v. Stegmeir, 158 Kan. 511, 148 P. 2d 755. We there quoted with approval a comment on the statute made by the judicial council in April, 1935. Among other things that comment concerning the statute contained the following pertinent statement:
“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.” (Our italics.)
The fact these allegations should not be made a part of the public records does not, however, mean this court should not have them for its information in the event of an appeal. The statute expressly provides the bill of particulars shall be made a part of the abstract when the question sought to be reviewed relates to such allegations.
The bill of particulars is before us. It would seem to us the true legislative intent and purpose of the statute would be materially im paired, if not destroyed, if this court should on review set forth in its permanent public reports the allegations contained in the bill of particulars and the evidence pertaining thereto “unless that should be actually necessary.” In this case we do not think it is necessary. These were young people. Appellee’s parents are not living. He was reared by two aunts. Appellant was a country school teacher nineteen years of age at the time the action was tried. Appellant’s parents are good people. The families had been on friendly terms. Both parties to this action have some admirable qualities. There is no reason to believe they may not each succeed in a new marital-venture if such an undertaking is not made additionally difficult by scandalous matters unnecessarily spread on the public records.
Appellant directs attention to the fact the parties were married May 9, 1948, appellant left appellee on or about June 1 and this action was commenced June 12, 1948. Her counsel insists that since complete abandonment of appellee for one year would be necessary to constitute grounds for divorce on the ground of abandonment a divorce cannot be awarded for gross neglect of duty during the short period previously designated. Assuming this would always be true it is not the only ground on which a divorce was sought.
Studious examination and consideration of this record has led us to conclude we cannot say the record is without any substantial evidence to support the decree on the ground of extreme cruelty. Appellant admits any unjustified and long practiced course of conduct by one spouse towards the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted or threatened. (Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127; Carpenter v. Carpenter, 165 Kan. 42, 46, 193 P. 2d 196.) It is insisted, however, that in the instant case there was no long practiced course of such conduct. In addition to the foregoing statement from the Hayn and Carpenter cases should be added the following also contained in the Hayn case:
“Under some circumstances it may not be necessary that such conduct should continue over a long period to constitute extreme cruelty.” (p. 193.)
In the present case there was not only circumstantial but direct evidence which the trial court could and did believe that appellant’s acts deeply wounded appellee’s feelings, worried him greatly and that the legitimate ends and objects of matrimony had been utterly destroyed thereby. On the other hand the trial court found, and there is evidence to support the finding, that appellee was not guilty of the wrongful conduct claimed by appellant. These facts were sharply disputed and the trial court resolved the conflict of testimony in appellee’s favor.
Appellant further argues there must be corroboration touching the statutory grounds for divorce and that mere corroboration of indignities and abuses which are not grounds for divorce is insufficient. That is true. (Walton v. Walton, 166 Kan. 391, 202 P. 2d 197.) Manifestly it is often exceedingly difficult to obtain corroborating testimony concerning the conduct between spouses. Such difficulty, of course, does not eliminate the statutory requirement for corroboration. (Walton v. Walton, supra.) But we think we cannot say there was no corroborating testimony.
Furthermore, in addition to direct testimony the trial court had a right to draw reasonable inferences from the testimony of appellant, as well as from that of other witnesses, which pertained to the ground of extreme cruelty.
In the Walton case, we said:
“With respect to legitimate inferences which reasonably might be drawn from the evidence on that point we manifestly would refuse to interfere with the findings of a trial court in the event there was testimony to support such an inference.” (p. 393.)
It would be exceedingly difficult, if not impossible, to say there was no direct corroborating testimony or testimony of a corroborating character from which inferences of extreme cruelty reasonably could not be drawn.
Appellant complains concerning the sustaining of an objection to a question her counsel asked one of appellee’s witnesses on cross-examination. The witness was a woman thirty-eight years of age who had worked in the farm home of appellee for a number of years. The witness and appellee had been reared by two aunts. The witness continued to work in the farm home of appellee and appellant after their marriage. The relations between her and appellant were harmonious and the witness was clearly welcomed by appellant. In fact appellant confided in this witness concerning her marital trouble. The objection sustained was to a question which sought to elicit the compensation or terms under which she was employed. It was argued the question was competent for the purpose of showing the bias and prejudice of the witness. Although considerable lati tude of inquiry is ordinarily and properly allowed on cross-examination for the purpose of showing bias and prejudice of a witness the extent of such inquiry rests in the sound discretion of the trial court. While the trial court might well have admitted the testimony we shall not say its exclusion constituted an abuse of sound judicial discretion. This action was not tried by a jury but by the court. The trial judge may have concluded the compensation the witness was receiving, or even if she were actually rendering some of her services gratuitously, would not in his opinion affect the credibility of this witness.
Another complaint strenuously urged pertains to the exclusion of affidavits of two doctors. No notice was given of intention to use the affidavits as required by G. S. 1935, 60-2835. The affidavits were properly excluded. It is true the court stated the same testimony would not be admitted if it were contained in depositions. We think the ruling was not prejudicially erroneous, if erroneous at all.
Appellant argues the court should have admitted evidence touching the reputation of appellant for honesty and morality and that the same testimony should have been admitted concerning a young man with whom appellant had previously kept company. It is true the court might with propriety have admitted such testimony. On the other hand it cannot well be said its exclusion constituted reversible error. Appellant states these matters were presented on the hearing of the motion for a new trial. We must assume the trial judge reconsidered his previous ruling and concluded that even if he had admitted such evidence it would not have altered his decision. (Scott v. Southwest Grease & Oil Co., 167 Kan. 171, 177, 205 P. 2d 914.)
Appellant further contends the decision was rendered by the court under the influence of passion and prejudice. The complaint was included in the motion for a new trial and has been fully examined. There are a few instances in the record which indicate the trial judge may have been somewhat impatient and perhaps unnecessarily abrupt. In any event the contention the decision was based on passion and prejudice is not sustained by what is contained in the record.
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The opinion of the court was delivered by.
Smith, J.:
This appeal involves a final settlement of an estate. From the order of final distribution made by the probate court an appeal was taken. The district court held that one-half of the estate of decedent escheated to the state on account of the failure of heirs. The heirs at law have appealed.
There is no dispute about the facts. The decedent, John B. Brown, came to this country from England with his mother Naomi shortly after 1867. Naomi’s husband and his only brother had died in the sei’vice of their country sometime before her arrival in America with John. She had one other child named Sarah. Sarah was drowned in the Smoky Hill River, unmarried, and without issue, sometime in the nineties. After the arrival in America of decedent and his mother she was married to Thomas York. As a result of this marriage five children were bom — Clarence, Frank, George and Edward, half brothers of decedent, and Nellie, a half sister. They all lived together in the York home after the death of the father and mother and the stepfather of decedent. The other boys left home but Nellie and her half brother, John Brown, de cedent, continued to occupy the homestead until decedent’s death on May 15, 1947. On proper motion, the probate court set aside the homestead for the benefit of Nellie. No question is raised about that. It will be seen that Nellie was a half sister and Clarence, Frank, George and Edward were half brothers of the decedent, John Brown, on account of the mother of all of them being Naomi, the widow who had come from England in 1867 and married Mr. York. They were the only surviving heirs of decedent and they established their heirship through their common mother, Naomi. The state of Kansas intervened in the action and urged that on account of the failure of heirs through the father and paternal grandparents of the decedent, the state was entitled to one-half of the estate by escheat. The court held that the heirs did not have any interest or concern in one-half of the estate; that under our statute of descent and distribution one-half would go to the heir of the father of decedent, if any, and that on account of their being no heirs in the paternal line the one-half must be handled as es-cheated property. The heirs, that is, the half brothers and the half sister, have appealed.
The specifications of error are that the court erred in holding that the only heirs of decedent, being his half brothers and half sister through a common mother, inherited only half of decedent’s estate; that it erred in holding that the half brothers and half sister did not inherit the whole estate; that the court erred in holding that the heirs of decedent, being his half brothers and half sister, had no interest in the estate which would have gone to the heirs of decedent’s father if there had been any such heirs.
The appellants state the question involved is whether one-half of the estate left by intestate escheated to the state when all his heirs consisted of half brothers and a half sister through their common mother and there were no heirs from intestate’s father’s side. The section in effect when intestate died was G. S. 1947 Supp. 59-508. It provides, as follows:
“If the decedent leaves no surviving spouse, child, issue, or parents, the respective shares of his property which would have passed to the parents, had both of them been living, shall pass to the heirs of such parents respectively (excluding their respective spouses), the same as it would have passed had such parents owned it in equal shares and died intestate at the time of his death.”
The statute providing for escheats is G. S. 1947 Supp. 59-514. That section provides, as follows:
“If an intestate decedent leaves no person entitled to take his property by intestate succession, as provided in'this article, it shall escheat to and become the property of {he state.”
Counsel for the appellants argue it is a safe assumption from the history of the legislation on this subject that the legislature never intended a sister and brothers, being the only surviving heirs of their half brother, deceased, should sustain what counsel term “the punishing infliction of a seizure of one-half of the estate” by the state. The trouble arises because the decedent was only a half brother of the heirs. In most instances the children of a deceased mother are the children of a deceased father, that is, they have the same mother and father, and this question would not arise. At the outset, it should be noted the taking of property by inheritance is entirely a matter of statute. (See Genschorck v. Blumer, 136 Kan. 228, 14 P. 2d 722.) Chapter 80 of the Laws of 1862 was the chapter on descent and distribution. Sections 18, 19 and 20, also 22 provides, as follows:
“Sec. 18. If the intestate leaves no issue, the whole of his estate shall go to his wife, and if he leaves no wife nor issue, the whole shall go to his father.
“Sec. 19. If his father be previously dead, the portion which would have fallen to his share by the above rules, shall be disposed of in the same manner as though he had outlived the intestate and died in the possession and ownership of the portion thus falling to his share and so on through each ascending ancestor and his issue, unless heirs are sooner found.
“Sec. 20. If heirs are not found in the male line, the portion thus uninherited shall go to the mother' of -the intestate and to her heirs, following the same rules as above prescribed.”
“Sec. 22. If, still, there be property remaining uninherited, it shall be escheat to the Territory.”
Chapter 33 of G. S. 1868 again dealt with the same subject. Sections 20 and 21 of that chapter provide, as follows:
“Sec. 20. If the intestate leave no issue, the whole of his estate shall go to his wife; and if he leave no wife nor issue, the whole of his estate shall go to his parents.
“Sec. 21. If one of his parents be dead, the whole of the estate shall go to the surviving parent; and if both parents be dead, it shall be disposed of in the same manner as if they, or either of them had outlived the intestate and died in the possession and ownership of the portion thus falling to their share, or to either of them, and so on through ascending ancestors and their issue.”
The statute as thus enacted appears in the General Statutes of Kansas of 1935, 22-119 and 22-120, without change.
In effect at the time the judgment in this case was entered was G. S. 1947 Supp. 59-508. It was enacted in 1939 as a part of the probate code. It has already been quoted herein.
After reciting the above legislative history, counsel for appellants ask us to hold that none of the participants in these legislative acts had any consciousness that a seizure such as is claimed here would be authorized by the literal terms of the act.
We are unable to accept this view. The statutes have received our attention on numerous occasions during the years. Without discussing all of them the opinion in In re Estate of Doyle, 152 Kan. 23, 103 P. 2d 52, deals adequately with the question. There Ellen Doyle had died, unmarried, without issue, or brothers or sisters, and both her parents had predeceased her. There were many claimants to her estate. The probate court had heard the claims and found that a group of claimants designated as the Young claimants were entitled to the entire estate. All the claimants appealed to the district court. There the court found that the Young group had proved themselves to be heirs at law of Ellen through her father, and were entitled to one-half of the estate and that a group designated as the McGuan claimants had proved their relationship as her heirs at law through her mother and were entitled to one-half of the estate.
Amongst other appeals was one by the Young claimants from that portion of the judgment in favor of the McGuan claimants contending they were entitled to the entire estate. The McGuan claimants moved to dismiss this appeal on the ground that the Young claimants claimed heirship through their father only; that as such claimants they could not in any event inherit more than half of the estate — hence they had no concern with that portion of the decree which determined to whom the other half of the estate should pass. On this question we said, after citing authorities:
“We think it clear from these authorities that those who claim to be heirs of Ellen Doyle through her father cannot be entitled, to more than one-half of her estate. . . . Who is an heir, or who are the heirs, of a decedent depends upon the law of the state or country. . . . So, we must of necessity turn to the statutes to see who is or may be an heir of a decedent. This we have considered hereinbefore and concluded the Young claimants cannot be prejudiced by the judgment of the court relating to that part of the estate which must be traced through the mother of Ellen Doyle.”
We dismissed the appeal of the Young claimants. In arriving at this conclusion we discussed the statutes we have reviewed here, also Russell v. Hallett, 23 Kan. 276; Tays v. Robinson, 68 Kan. 53, 55, 74 Pac. 623; Sparks v. Bodensick, 72 Kan. 5, 82 Pac. 463; Fuller v. Haynes, 86 Kan. 37, 119 Pac. 331; Genschorck v. Blumer, supra; and Baird v. Yates, 108 Kan. 721, 196 Pac. 1077. Our holdings on this point have been uniform. It is hardly correct to say as counsel do that the state is seizing half of the inheritance of these heirs. As a matter of fact, there is no statute by which more than one-half this estate can reach appellants. As already remarked, inheritance in this state is all a matter of statute. Appellants take what the trial court gave them by means of the statute and there is no way for them to take any more than the statute gives them. The state does not take anything from any person when an estate escheats. There is no one to whom the statute says it should go, so it goes to the state. It is not taken from anyone however.
Appellants next point out the authorities we have cited and ask us to hold that they mean other than we have held them to mean. In effect, counsel ask us to hold that the statute means other than what the language says. This statute of descent and distribution is plain and unambigious in its terms. There is no room left for judicial interpretation. In such a situation we cannot hold the statute really means something else merely because the result under the particular circumstances leaves something to be desired. (See In re Estate of Duel, 161 Kan. 593, 171 P. 2d 271; State, ex rel., v. State Highway Comm., 163 Kan. 187, 182 P. 2d 127.)
Appellants next point out Chapter 310 of the Session Laws of 1949. That chapter amended G. S. 1947 Supp. 59-508 by adding a clause at the end of the section, as follows:
• . but if either of said parents left no such heirs, then and in that event his property shall pass to the living heirs of the other parent.”
It will be noted the amendment was apparently enacted for the purpose of dealing with the situation we have here. It took effect upon its publication in the official state paper on April 15, 1949. The motion for a new trial in the situation we are considering was considered and overruled on the 16th day of April, 1949. It will be seen this amendment was published the day before the motion for a new trial was decided but after the other steps taken in the case recited here had transpired.
Appellants first argue the -law as expressed in the amendment was always the law as though.the statutes had contained such a provision from the beginning. Counsel first argue that the statute will operate retrospectively as well as prospectively when no constitutional obstacle intervenes; and that retrospective action must depend upon the intent of the legislature and that while there is a generally accepted rule that if the act does not expressly provide for retrospective operation the presumption is that only prospective reach is intended, this presumption does not obtain if the act is remedial in character; that while retrospective acts cannot be permitted to disturb vested rights, neither the state nor its political subdivisions have such here; that specifically the state may always waive an escheat; that the attitude of the appellate court toward a decision of the trial court, right under the then existing laws but wrong when the appellate court decides, because of an intervening change of the law should be to uphold the decision of the trial court.
We have concluded that the question whether the statute operates retrospectively or prospectively only is one of legislative intent and that there must be a strict rule of presumption against retrospective operation. (See 50 Am. Jur. 494, § 478.) The appellants seek to escape this rule by arguing that it does not apply when the statute under consideration is a remedial statute and he argues that this is a remedial statute. A definition is given of a remedial statute in 50 Am. Jur. 33, § 15, where the language reads:
“Legislation which has been regarded as remedial in its nature includes statutes which abridge superfluities of former laws, remedying defects therein, or mischiefs thereof implying an intention to reform or extend existing rights, and having for their purposes the promotion of justice and the advancement of public welfare and of important and beneficial public objects, such as the protection of the health, morals, and safety of society, or of the public generally. Another common use of the term ‘remedial • statute’ is to distinguish it from a statute conferring a substantive right, . . .”
See, also, Words & Phrases, Vol. 36, p. 825; also Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860, where we state:
“The question here, however, is whether the new law is remedial in character, that is, whether it merely provides a method or procedure for the collection of future installments in the event appellant refuses to comply with the terms and requirements of the existing judgment.”
See, also, Van Doren v. Etchen, 112 Kan. 380, 211 Pac. 144; Connecticut Mutual Life Insurance Company v. Talbot et al., 113 Ind. 373, 14 N. E. 586; Hasselman et al., v. McKernan et al., 50 Ind. 441; Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028.
We have examined these authorities and have concluded that the chapter in question in the Laws of 1949 does affect substantive rights. It does not provide how any rights may be enforced. It creates a right in and of itself. We are unable to say it is remedial and we hold on the question whether it should operate retrospectively or prospectively when it must be given a strict interpretation and a presumption indulged that it was intended to operate prospectively only. On the question whether the state by the enactment of this chapter waived its right to one-half of the estate — held that there is actually more at issue than whether the half of the estate es-cheated to the state. Within ten years under the provisions of G. S. 1947 Supp. 59-903 anyone claiming as an heir through the father may appear and claim his rights to one-half of this estate from the state. It would not do to say the state could extinguish this right by the enactment of a statute such as Chapter 310. The enactment of the above chapter is an added importance in this case. It gives weight to the argument heretofore expressed in this opinion that until the enactment, the law was as has been held in the authorities heretofore cited.
We have been furnished with a brief of amicus curiae which points out a holding from Iowa. In In re Tripp’s Estate, 35 N. W. 2d 20, the facts were as stated by the court:
“Lucy E. Tripp, a resident of the state of Washington, and owner of an undivided interest in certain real estate in Iowa, died intestate on May 1, 1944, leaving no surviving spouse or child. Isabelle A. Kellihan was administratrix of her estate and there was no property except an interest in real estate in Lyon County, which was sold and the proceeds are in the hands of administratrix. The father and mother of Lucy E. Tripp had predeceased her. Heirs of the mother were found but no heirs of the father.
“The administratrix, in her final report, proposed to pay the entire net proceeds of the estate, amounting to $3184.66, to the collateral heirs of the decedent’s mother. The state of Iowa objected to the proposed distribution, contending that one-half of the estate would have passed to the heirs of decedent’s father, and should escheat to the state. The court sustained the proposed distribution of the administratrix in her final report and ordered distribution of the funds in her hands to the collateral heirs of the mother. The State of Iowa, hereinafter designated as plaintiff, appeals. Other parties interested are designated defendants.”
The court said:
“The plaintiff also cites, and apparently relies upon, the case of In re Doyle’s Estate, 152 Kan. 23, 103 P. 2d 52. This case, as to the facts involved, raises practically the same question as does the case at bar. The Doyle case cites and follows Russell v. Hallett, 23 Kan. 276, decided in 1880, and in which the question was the distribution of the interests of several persons who per ished in one disaster. The Hallet ease refers to the rule in Iowa when it contained the words ‘or, either of them.’ In effect the laws of Kansas as to inheritance, with some variations, may be assumed to be the same as those of Iowa. The district court in the present case, we think rightly, did not follow the rule in the Doyle case, holding it neither necessary or desirable, and that the natural interpretation of the legislative intent under section 636.40 is that where one of the decedent’s parents had no heirs the estate should pass to the heirs of the other parent. The district court did not feel called upon to follow the rule in the Doyle case for the further reason that the more equitable and just rule under our statutes was as announced in his opinion. We agree with this holding as being the legislative intent.”
It is pointed out that our statutes of descent and distribution came from Iowa and also that we cited Iowa authorities in In re Doyle, supra. Actually the statutes of Iowa, section 636.41 contains a provision, as follows:
“If heirs are not thus found, the portion uninherited shall go to the spouse of the intestate, or the heirs of such spouse if dead, according to like rules,
That actually has the effect as the amendment to our statutes enacted in 1949. We hold the holding in In re Tripp’s Estate, supra, will not require a reversal of the judgment in this case.
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The opinion of the court was delivered by
Parker, J.:
This is an action to recover damages for breach of contract. The plaintiffs appeal from an order sustaining a demurrer to their evidence and a judgment for costs.
Owen W. Frogge and Fred Frogge, partners, doing business as Frogge Motor Company instituted this lawsuit by the filing of a petition containing two causes of action wherein they charged B. B. Belford, Mary Belford, L. R. Belford and Amos B. Zimmerman, partners, doing business as Belford Motors and engaged in business as general dealers for the sale of DeSoto and Plymouth automobiles, with having entered into an oral associate dealer agreement with them on April 10, 1946, whereby they were granted the exclusive right to sell DeSoto and Plymouth automobiles in Harvey county for an indefinite term of years and promised delivery of forty Ply-mouths and eighteen DeSotos during the first year of their contract. The pleading also contains allegations detailing other terms and conditions of the alleged agreement which will not be related because they are not essential to a determination of the issue involved on appellate review. In addition it charges Belford Motors breached the contract in its entirety without legal cause or excuse.
The foregoing factual statements apply with equal force to all grounds for relief relied on by plaintiffs in their petition. Those following are only to be found in the particular cause of action to which they are accredited.
In their first cause of action plaintiffs allege that by reason of defendants failure to perform “said oral agreement” they lost their profit on the sale of fifty-eight new Plymouth and DeSoto cars, together with profit on their trade-ins amounting to $500 for each new car or the total sum of $29,000 for one full year and that if there had been performance instead of cancellation of such contract they would have realized a net profit of $10,000 on their service parts department and had a business which would have been worth $25,000 as a going concern. They then assert that by reason of such facts they sustained damages in the amounts stated and pray that they have judgment therefor.
The second cause of action is based on fraud and deceit. Its allega-"' tions are to the effect defendants entered into the oral agreement without any intention of performing its terms for the purpose, which was accomplished, of obtaining additional cars from the Chrysler corporation with knowledge that their action in inducing plaintiffs to execute it would cause them to dispose of other business interests and lose the profits therefrom. It then states plaintiffs did dispose of those interests in reliance upon the contract with that result and avers that by reason of defendants’ fraudulent conduct they are entitled to recover actual damages for profits they would otherwise have received from the businesses so disposed of in the sum of $27,000 together with punitive damages amounting to $25,000.
To the petition defendants filed a lengthy answer and cross petition. This pleading is full of allegations which need not be detailed because they pertain to matters of defense and affirmative releif not material to a consideration of the ruling on the demurrer. For present purposes it suffices to state the answer contains a general denial and in addition an express denial of the consummation of any oral contract such as was described in the petition or the completed execution of any agreement whatsoever, either oral or written, and that attached to and made a part thereof are two written instruments, one identified as an “associate dealer agreement” and the other as a “term of purchase agreement” which are alleged to have superseded any oral agreements theretofore existing between the parties if in fact any were entered into or made.
In response to the answer and cross petition plaintiffs filed a reply in which they denied all matters inconsistent with allegations of their petition. Notwithstanding, they expressly admit execution of the “associate dealer agreement” set forth in the answer. However, they allege they were induced to sign it on defendant’s promise to deliver forty Plymouth automobiles and eighteen DeSoto automobiles the first year, six of which were to be delivered by June 1,1946, and assert that such promise was the consideration for the agreement which would not otherwise have been signed by them. This pleading contains a further allegation that defendants renewed this promise after the execution of the agreement.
With pleadings as heretofore described the case came on for trial by jury. Plaintiffs’ counsel first made an opening statement in which it was conceded that following oral negotiations relating to an associate dealer contract the parties met on April 10, 1946, to close the deal and on that date executed the two written agreements set forth in the answer. Counsel for the defendants moved for judgment on the pleadings and on the opening statement upon grounds, among others, that at that stage of the proceeding it appeared plaintiffs were attempting to rely upon written agreements for recovery whereas their causes of action were based entirely upon an oral contract. Thereupon the trial court announced that it would delay a ruling on this motion until it came time to rule on a demurrer to plaintiffs’ evidence, stating “I will wait and see what the evidence develops.” Plaintiffs then proceeded to adduce evidence in support of their two causes of action. Among other things they offered, and the trial court admitted, the two written agreements heretofore mentioned which, it can be added, the evidence clearly .discloses were executed after numerous preliminary negotiations and by their terms purported to include all prior oral agreements between the parties. Indeed the purpose clause of the associate dealer agreement specifically so states. In addition such instrument further expressly provides “This agreement cancels all prior agreements, verbal or written, between direct dealer and associate dealer. No representative of either party except as herein explicitly provided has any authority to waive any of the provisions of this agreement or to modify or to change any of its terms”.
As soon as plaintiffs had closed their case defendants attacked the evidence by special demurrers, the grounds of which will not be stated unless and until occasion arises, and by a general demurrer based upon the premise the evidence disclosed that whatever contracts had been entered into between the parties were in writing and therefore failed to establish any cause, or causes, of action founded upon the oral agreement sued on. Plaintiffs resisted these attacks, insisting the testimony established both causes of action set forth in their petition, and at no time requested leave or attempted to amend that pleading to conform to the proof. During argument they did concede, however, there was no evidence to sustain allegations of their first cause of action respecting loss of profits on their service parts department and loss of business as a going concern or allegations of their second cause of action as to punitive damages. Therefore we pause to point out the record discloses that thereafter the trial court treated all such claims as having been abandoned.
After due consideration the trial court sustained all demurrers lodged against the petition. Thereupon plaintiffs perfected the appeal which now gives them the right to have a review of that action.
In their brief appellants, as they did in the court below, insist their evidence establishes an oral contract under the terms of which they were to have an associate dealership at Newton and receive forty Plymouths and eighteen DeSotos from appellees during the first year of that relationship, six of such automobiles to be delivered by June 1, 1946. We believe a review of the record, giving their evidence the benefit of all inferences to which it is entitled on demurrer, will readily disclose their position on this point is not tenable. When considered in its entirety the clear import of Owen Frogge’s own testimony is that after negotiating for several weeks with one of the Belfords regarding the associate dealership he and his brother met with the appellees in Wichita for the purpose of closing the deal and that there, after further negotiations, the parties entered into a written associate dealer contract the terms of which were discussed prior to its execution. Fred Frogge, while testifying as a witness in his own behalf, said “Before the contract was signed we talked about the deal, what it would amount to, how many cars we would get, and all.”
From the foregoing evidence we are convinced appellants’ own testimony clearly establishes that whatever contract they have with appellees is written, not oral. Of a certainty it brings them squarely within the well established rule adhered to and reapproved in McKay v. Clark, 162 Kan. 653, 178 P. 2d 679, where we held:
“When oral conversations or negotiations lead to the execution of a written contract, they are thereby merged into the written instrument, from which the terms of the contract are to be determined.” (Syl. ¶ 1.)
Nor does the record reveal a subsequent oral contract as appellants urge. The only evidence on this subject is to be found in one statement by Owen Frogge which reads, “Before I left on April 10, 1946, Mr. Belford still said we would get forty Plymouths and eighteen DeSotos.” Clearly this promise by Belford which was without consideration and would have changed the terms of the written agreement did not result in a new contract. Under our decisions (see Threshing Machine Co. v. Francisco, 106 Kan. 704, 189 Pac. 981; Arensman v. Kitch, 160 Kan. 783, 165 P. 2d 441, and cases there cited) a subsequent oral agreement purporting to change, alter or contradict, a prior written agreement on the same subject must be supported by a fresh and independent consideration. Otherwise it is unenforceable.
Having demonstrated the force and effect of appellants’ evidence the question whether the trial court erred in ruling on the demurrer becomes less difficult. It must be remembered this is not a case involving a departure in the pleadings or a variance between the pleadings and the proof but one where appellants base their cause of action for damages entirely upon the breach of an oral contract.
The rule that all matters material or essential to causes of action relied on in a petition must be established by evidence is, of course, so elementary as to require no citation of the authorities supporting it.
Our recent decision in Sargent v. Hainke, 166 Kan. 542, 203 P. 2d 220, illustrates the application of that principle. There we held:
“In an action to recover commissions for the sale of machines manufactured by the defendant in which plaintiff bases his cause of action on a special agreement of employment between the parties he must recover, if at all, upon such contract alleged in his petition, and a demurrer to plaintiff’s evidence which falls short of the proof required to make out a prima facie case under such allegations is properly sustained.” (Syl.)
And in the opinion said:
“. . . In passing on defendant’s demurrer the court was bound to consider only the question whether plaintiff’s evidence made out a prima facie, case as to the issues set forth in the petition. He must recover, if at all, upon the contract alleged in his petition. Where the parties make a special agreement by the terms of which plaintiff would be entitled to a commission only in a certain event, he must show that the event has occurred. (Karr v. Moffet, 105 Kan. 692, 185 Pac. 890, rehearing 106 Kan. 379, 187 Pac. 683; Wenkeimer v. Hager, 129 Kan. 518, 283 Pac. 489.)” (p. 548.)
In the situation heretofore outlined, without anything else, we think the foregoing decision warrants a conclusion the trial court’s ruling on the demurrer was proper. But that is not all. Express provisions of our statute require it. G. S. 1935, 60-755, provides in effect that there is a failure of proof when the allegations of the claim to which proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for personal injuries. The defendant demurred to the petition because it did not state a cause of action. This demurrer was overruled and defendant has appealed.
The petition alleged that about 7:30 p. m. on the 19th day of, October, 1942, plaintiff walked east from the east curb of a street in Galena toward the sidewalk running north and south .parallel with the street, and as she neared the west edge of the sidewalk, walking in a careful manner, she stepped on a thin and worn-out tin lid covering a water meter hole located at the west edge of the sidewalk, and about eight feet south of a small walk leading from the street to the sidewalk, without knowing that the hole was located there and when she put her weight on the lid, it was insufficient in strength and so worn and defective it gave way and dropped her into the hole so that she was injured; that she had been in good health prior to the injury. The petition further stated that all of her injuries were caused by the defective condition of the street at the place in question and it was dangerous for public travel because the city, its agents, officers and servants negligently maintained the water meter hole and left it improperly protected and insufficiently covered and that such dangerous and defective condition had existed for a long period of time, the exact extent of which plaintiff was unable to state because it was unknown to her, but that the city and its officers, agents and servants knew of the dangerous condition and could have known of it.
To this petition the defendant leveled a motion to make more definite and certain in nine particulars and also a motion to strike certain language which referred to a dangerous and defective condition of the street and curbing. These motions were all overruled.
In addition thereto, the defendant filed a demurrer on the ground the petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled — hence this appeal.
The defendant assigns as error the action of the trial court in refusing to make the petitidn more definite and certain, in refusing to strike and in overruling the defendant’s demurrer.
The defendant first argues here that the court erred in overruling the two motions.
Plaintiff argues that the motions were within the sound discretion of the trial court. We do not find it necessary to decide this question because of the conclusion we have reached as to the demurrer.
In passing it should be noted the nine particulars in which the defendant asked the petition to be made definite and certain did not bear upon the nature of the alleged defective parking or water hole plaintiff alleged caused her injuries. They all had to do with the extent of her injuries, if any. On this account, the rule requiring a strict construction of the petition does not apply. The defendant in its motions did not ask for any additional information as to the nature of the defect.
The petition at various places spoke of a dangerous condition of the “street and curbing.” The motion to strike was directed at part of this language. The place at which the injury , occurred, however, was clearly located as at the west edge of the sidewalk and about eight feet south of a small walk leading from the street to the house. Clearly the unsafe condition pleaded was in what is commonly spoken of as the “parking.” There is a different rule of liability as to “parking” on one hand and “sidewalks” and “streets” on the other. Technically a parking might be deemed a part of the street. However, the city does not owe as high a degree of care to one using the parking to walk upon as it owes to one using the street or sidewalk. We have considered this petition from the viewpoint of whether it stated a cause of action for a defect or dangerous condition in the parking.
Stated succinctly, it alleges the plaintiff was walking across the parking in the evening of October 19th, whether it was dark or not was not alleged, and that she stepped upon a tin lid which covered a hole, which tin lid was worn and defective and gave way letting her fall into the hole. The question is the liability of the city for injuries which occur in a parking, and whether plaintiff may recover in view of the fact that she walked across the parking at a point only eight feet from where there was a walk leading from the street to the sidewalk.
We have considered the question of the liability of a city for injuries sustained while walking across a parkway in Dargatz v. Dodge City, 151 Kan. 747, 100 P. 2d 680. In that case the petition alleged plaintiff was injured when she stepped into a hole in the parking about 10 o’clock in the evening. She had alighted from her automobile and walked across the parking to the sidewalk. The demurrer of the city to the plaintiff’s petition was overruled and the city appealed. We reversed and quoted from Register v. City of Pittsburg, 139 Kan. 753, 33 P. 2d 173, where we said:
“While the cases cited authorize a recovery, they recognize that there are duties owed by the plaintiff to keep to streets and walks designed for travel to the place where the accident occurred and give consideration to the use that might be expected to be made of the streets at that place. The parkway is not expected to be used much by foot passengers.”
Later, in the Dargatz case, supra, we said:
“In considering this question this court will take into consideration the amount of parking and the amount of sidewalks of a city and the condition of parkings generally. The plaintiff had no right to expect the parking to be in as safe a condition as was the walk. The city is held to a high degree of care as to sidewalks, but to hold it to the same degree of care as to parking would place a burden upon cities with which they would not be able to cope.”
We also considered the same question in Mead v. City of Coffey ville, 152 Kan. 799, 107 P. 2d 711. There the petition alleged the injury to plaintiff by tripping over an iron stake in the ground in the parking. The defendant’s demurrer to plaintiff’s petition was overruled. On appeal we reversed the judgment and referred to Dargatz v. Dodge City, supra, also to Register v. City of Pittsburg, supra. We quoted from the latter opinion and said:
“While the cases cited- authorize a recovery under the facts, they also recognize that there are degrees of care to be exercised, and right of recovery varies according to the place where the accident occurred, and what the duties of the city were as to keeping such places safe for travel and the use that might be expected to be made by users of certain parts of the street. The same care is not to be expected by people who are angling across the street over a curb and parkway as in places set apart for travelers, like sidewalks and crosswalks.
“While the cases cited authorize a recovery, they recognize that there are duties owed by the plaintiff to keep the streets and walks designed for travel to the place where the accident occurred and give consideration to the use that might be expected to be made of the streets at that place. The parkway is not expected to be used much by foot passengers.”
We said further:
"Could we logically say it is not negligence of the city to fail to discover the depression, but it is negligence not to discover a stake one-fourth of an inch in diameter and five inches in height? If so, upon what sound theory? It is common knowledge that grass and weeds frequently are permitted to grow in parkings to a height far above five inches. Is the city liable if it does not discover a stake five inches in height under those circumstances? What was the condition of the instant parking? The petition is silent. In the Dodge City case the depression was obvious. It had existed not only at night, but for a long time, and the petition alleged the city knew all the facts. That case received our serious consideration, as has the instant one.”
Following what was said in the above opinions, we hold the petition we are considering did not state ¿ cause of action and defendant’s demurrer to it should have been sustained.
The judgment of the trial court is reversed with directions to sustain defendant’s demurrer. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for an accounting and for money. Judgment was for the plaintiffs on some items and for the defendant on some. The defendant has appealed and the plaintiffs have cross-appealed.
The petition stated four causes of action.
The petition for the first cause of action alleged that in 1929 Potts and Lux agreed to engage in the wholesale mercantile business as partners; that Lux agreed to advance $100,000; and that at the same time Potts and Lux made arrangements to take Listz and Mc-Knaught into the business; it was agreed Lux was to receive five percent of $100,000 before any division of profits was made and then the profits would be divided: Sixty percent to Lux; twenty percent to Potts; five percent to McKnaught; and five percent to Listz; and ten percent was to remain as a reserve in the business; and it was agreed that in case of liquidation those percentages would prevail after payment to Lux of his $100,000. The petition then alleged that it was determined the agreement under which they were operating should be put in writing and such an agreement was executed by all the parties.
This is set out here, as follows:
“Agreement between S. E. Lux Jr., Sole Owner of The Lux-Witwer Company, and Harry W. Potts, Ralph T. McKnaught and George Listz.
“S. E. Lux Jr. is to receive $5,000.00 (Five Thousand Dollars) representing five percent interest on his investment of $100,000 each year before any division of profit is to be made. After this interest is paid the remaining profits, if any, are to be divided on the following basis: Sixty percent to S. E. Lux Jr. ; Twenty percent to Harry W. Potts; Five percent to Ralph T. McKnaught; Five percent to George Listz and the remaining ten percent to be placed in reserve to remain in the business until a substantial cash reserve is built up.
“If a Net Profit of One Thousand Dollars is earned, in addition to the Five per cent interest on $100,000 investment, then the following salary bonuses are to be paid: Harry W. Potts, Six Hundred dollars per year; Ralph T. Mc-Knaught, Three Hundred dollars per year; George Listz, one Hundred and Eighty dollars per year. If One Thousand dollars net profit, in addition to the above mentioned interest charge, is not earned, then no salary bonuses will be paid for that year. The Net Profit mentioned above is to be figured after the regular reserves for Taxes, Depreciation, etc., have been set up. It is also agreed that, in order that the business may be adequately financed, there shall be no distribution of profits, nor disbursements of same, for the fiscal year but that this money shall remain in the business until December of the following year. At this time, distribution of the profits for the preceding year shall be made, provided the business has at that time earned a profit for the fiscal year of not less than $2,500.00 in addition to the $5,000.00 interest charge mentioned above.
“In the event of a liquidation of this business, then the percentages mentioned above are to prevail.”
The petition then alleged that the above agreement remained in force until September 15, 1944, when the partnership was liquidated and since then Lux had exclusive possession; that for all the years the business had shown a profit except a loss of $2,818 in 1940, and this loss had been charged against accumulated profits; that in addition to the $100,000 put in by Lux all parties had made further investments in the business in the form of undistributed profits and it was alleged that the value of the property and assets were substantially in excess of the original investment of Lux and plaintiffs believed this excess value amounted to $125,000 and Potts was entitled to twenty percent of this.
The second cause of action first made the allegation of the first cause a part. It then alleged that Potts was entitled to twenty percent of the profits but the amount paid him had not been the full amount to which he was entitled due to the fact that the personal income taxes of Lux had been charged to the expense of the business in the amount of $114,702.04. The petition then alleged that the provision of the agreement:
“The Net Profit mentioned above is to be figured after the regular reserves for Taxes, Depreciation, etc., have been set up.”
referred to general property taxes and did not refer to the personal income taxes of Lux, Potts or any of the defendants, and this, income tax was paid not only on the income of Lux from the business mentioned but on his income from other sources, and that by reason of this payment the actual net profits were $114,702.04 in excess of the amount upon which actual distribution has been made to Potts and he was entitled to twenty percent thereof, or $25,498.34.
For a third cause of action, plaintiffs referred to the allegations of the first and then alleged that the agreement provided that after the distribution, ninety percent of the profits to Potts and defendants “the remaining Ten per cent to be placed in reserve to remain in the business until a substantial cash reserve is built up”; that this agreement was followed until 1942, at which time Lux arbitrarily transferred this cash reserve to his son Samuel E. Lux III without the consent of Potts; that Potts had twenty percent interest in this reserve, which he believed would amount to twenty percent of $12,672.33, or $2,816.06.
The fourth cause of action alleged that Potts was entitled to twenty percent of the net profits of the business from January 1, 1944, to September 15, 1944, which profits he believed to be at least $40,000 and his share would be $8,888.88.
To apply to all the causes of action plaintiffs alleged defendant had in his possession the books of the company and about September 15, 1944, Potts demanded an accounting and settlement under the agreement, which was denied except as to the year 1944, and refused to make settlement unless Potts would accept it in full payment.
The petition further alleged that McKnaught and Listz were necessary parties because they were parties to the agreement and claimed some ownership in the business.
The prayer of the first cause of action was that the estate of Potts be declared the owner of a share in the business on September 15, 1944; that defendant be compelled to produce the records showing the extent of the property and assets on September 15,1944, and that the court cause an appraisal thereof to be made as of such date and ascertain the liabilities thereof at that time, including the investment of Lux, and the undistributed profits of plaintiffs and for judgment for $27,777.76 or for twenty percent of the difference between the value of such assets and liabilities, with interest at six percent from September 15, 1944, and that the judgment be made a lien on the property of the company.
The prayer of the second, third and fourth causes of action was for a full accounting upon the items set out therein; in the second for $25,489.34, or such an amount as might be found due after the accounting; on the third cause of action in the amount of $2,816.06, or such amount as might be determined; and upon the fourth cause of action for $8,888.88, or as much as should be determined, with interest on all amounts at six percent from September 15, 1944.
To this petition Lux interposed a general demurrer on the ground of no cause of action filed. McKnaught and Listz demurred to each of the four causes of action on similar grounds. All defendants ’demurred to the pleading as a whole on the ground of misjoinder of parties. These demurrers were overruled and on appeal the judgment was affirmed. (See Potts v. Lux, 161 Kan. 217, 166 P. 2d 694.) Just what we said and held in that appeal will be treated later in this opinion. At any rate, the case went back to the trial court, where the defendants filed amended answers. The amended answer of Lux admitted that the plaintiffs were the executors of Potts’ will and that the action had been revived in their name. The answer then admitted the oral and written agreements substantially as pleaded. The answer further admitted that Lux advanced $100,000 and that subsequently between 1929 and 1944 he advanced $53,-334.40, which included $10,000 transferred from his dividend account and on July 21,1938, he advanced an additional $5,000 from his personal funds into the interest account, and that he advanced from his dividend account between December 31, 1937, and September 1, 1944, $45,849.71, which was due him under the contract. The answer further admitted that the company made profits each year from 1929 to 1943 except the years 1932 and 1940 and that the net profits were to be divided among the parties, as provided in the contract, and that Lux had paid or tendered to Potts all that was due him; that at all times Lux was the sole owner of the business and Potts and the other defendants were his employees and were paid a salary and a bonus, as provided in the contract. The answer further alleged that about September 1, 1944, Potts resigned his position with the company on account of ill health and Lux made a full accounting and tendered to Potts all that was due him, less deduction for social security, but Potts demanded a much greater amount. A copy of the statement rendered was attached.
The answer further admitted that during the several years mentioned in the second cause of action deductions were made from the gross profits in determining the amount due Potts, McKnaught and Listz for income taxes paid on the income of Lux, but that when the contracts were entered into it was understood by the parties that these income taxes were to be deducted and such deductions appeared on every statement of account rendered by the auditors of the company to Potts and each'year Potts and the other parties agreed to this deduction; that Potts made no objections to such deductions; that income taxes of Lux for the years 1941, 1942, 1943 and 1944 were paid in the amount of $135,376.91.
The answer referring to the third cause of action alleged that the ten percent of profits was placed in the reserve and held except for such portion as was distributed from time to time until January 1, 1940, when it was agreed that what had accumulated was to be distributed and from then on this ten percent was to be paid Samuel E. Lux III, who was to be employed by the company; that Samuel E. Lux III did enter the employ of the company and performed valuable services, and since that time with full consent of Potts had been paid; that Samuel E. Lux III continued in the service of the company from January 1, 1940, to September 1, 1944, except from August 7, 1943, to February 1, 1946, when he was in the military service.
Referring to the fourth cause of action, Lux admitted there was due Potts from the company $5,772 less deductions for social security and withholding taxes and he was tendered that amount but refused it. A further tender was made in the answer.
The answer further alleged that written statements of account showing all profits, disbursements, receipts, losses and gains in the business were prepared by competent accountants and each year a copy given to Potts, which disclosed the amount due each party, and these were discussed item by item and Potts and each of the parties accepted the amount shown to be due and each of these statements constituted “an account stated” of the account of each of the parties to the contract.
The answer of McKnaught and Listz was to the same general effect, with the addition that they both disclaimed any right, title or interest in any of the property of the company, except such amounts as were due each of them from January 1,1946, to the time of filing the answer under the terms of the contract.
The reply was a general denial with some special denials of no particular concern here.
Philip C. Gault was appointed referee. He heard testimony and arguments and on May 6,1948, prepared and submitted to the parties a report containing findings of fact and conclusions of law. Motions by both parties to modify these were argued before the referee and on June 14, 1948, this report, together with a supplemental report, and a memorandum opinion was filed with the trial court. The referee made thirty-nine separate findings of fact. Some of the issues of fact were determined in favor of the plaintiffs and some in favor of the defendants. He made ten conclusions of law, some in favor of the plaintiffs and some in favor of the defendants.
On June 30,1948, defendant Lux filed a motion for judgment on the findings and amendments to the findings of fact for the amount for which he had offered to confess judgment. He filed no motion for a new trial within three days nor any motion to modify the report.
The plaintiffs within three days after the referee filed his report filed a motion for a new trial on the first, third and fourth causes of action, motion for judgment on the report of the referee on the second cause of action and a detailed motion to modify findings and conclusions and for judgment. These motions were all overruled and the trial court entered judgment approving the referee’s report in its entirety. On November 9, 1948, final judgment was entered for the plaintiffs and against Lux for $43,521.67, with interest at six percent on $34,775.61 from August 31, 1944. Conclusion of law No. IX was corrected to read:
“ ‘Plaintiffs should recover judgment against S. E. Lux, Jr., in the following amounts:
On the first cause of action........................................ $5,078.58
On the second cause of action..................................... 25,359.22
On the fourth cause of action...................................... 4,337.81
With interest on said amount at the rate of six percent per annum from August 31, 1944. . .
On November 12, 1948, Lux filed a motion for a new trial, which was overruled. He appealed and in his notice of appeal recited that he appealed from the order overruling his motion for judgment on the findings, from the order refusing to set aside conclusions of law 6, 7 and 9, and for the reason there was no evidence upon which to predicate a verdict in excess of the amount tendered Potts by Lux, and from the judgment rendered on November 9,1948. At this point it should be noted that the record does not disclose any motion to set aside conclusions of law 6, 7 and 9.
Ten specifications of error are set out, among them being that the trial court erred in overruling the motion of Lux to render judgment for him on the findings of fact of the referee, in approving conclusions of law 6, 7 and 9 of the referee’s report, in entering judgment for plaintiffs in excess of the tender made by Lux, in entering judgment for plaintiffs upon the first cause of action, in entering judgment for plaintiffs in the second cause of action, in decreeing interest to the plaintiffs against Lux, in approving the seventh • conclusion of law, in holding that the annual statements were not accounts stated, in overruling defendant’s demurrer to the evidence of plaintiffs, in overruling the appellant’s motion for a new trial, and in refusing to adopt the requested conclusion , of law of the defendant, numbered 8, 10, 11 and 12. It should be noted here that there was no timely motion for a new trial and no motion asking the trial court to adopt requested conclusions of law 8, 10, 11 and 12. The only motion directed at conclusions of law was filed with the referee.
The findings and conclusions of the referee were unfavorable to the plaintiffs on many items. Hence their cross-appeal. This will not receive our attention until we have disposed of defendants’ appeal.
There is no controversy in this case but that Lux, Potts, Mc-Knaught and Listz were associated together in the wholesale grocery business, at first under an oral contract, and later under the written contract pleaded, and that Potts severed his connection with the firm September 15,1944. The answer of Lux admitted that the company made a profit in all but two years, and that after deducting items of expense provided for in the contract the net profits were to be divided among the parties according to the terms of the contract. The referee found in Finding No. 17 under the written agreement the termination of the connection of Harry W. Potts with the Lux-Witwer Company gave him a right to a share of the undistributed profits, although there was no receivership, forced sale or liquidation in the ordinary sense. This finding is not attacked by the appellant here.
When Potts severed his connection with the company McKnaught made up a balance sheet purporting to show the financial condition of the company on August 31, 1944. At the trial of the action, this balance sheet was used as a starting point by both parties and the question tried was the amount of undistributed profits in the company on August 31,1944. The contest as to the first cause of action centered around a number of items plaintiffs claimed should have been included in the undivided profits. On two of these the referee found for the plaintiffs and on the rest for the defendant. Appellant on his appeal argues that the referee should have found and the court should have given judgment for him on all these items.
The first of these deals with a fund we shall refer to as the reserve for bad debts. It is covered by Finding No, 22 of the referee’s report. That was, as follows:
“FINDING No. 22
“In Plaintiffs’ Exhibit 1, there is deducted from the amounts receivable the sum of $15,956.37. This reserve was accumulated through the years by charging to expense one-fourth of one percent of all credit sales and crediting same to this reserve; bad debts were charged against the reserve. Lux-Witwer had elected to set up a reserve in a percentage permissible under regulations of the Internal Revenue Bureau, instead of charging off its actual losses in bad debts.
“So far as the testimony shows the amount of the reserve did not necessarily indicate the probable losses, and in fact, there were no losses in any of the Accounts Receivable which made up the asset item on August 31, 1944. The fact that the accounts were all collected after August 31, 1944, is not conclusive of their fair value as of that date, but on the other hand there is no evidence to the effect that they were doubtful or worth less than their face value. Subsequent experience showed that they were worth their face value, and the fact that the governmental authorities frown upon distribution of parts of the reserve has no bearing on the true value of the accounts receivable ; but their value had, however, a direct bearing on what were or were not undistributed profits to which plaintiffs under the contract are entitled to share.
“Plaintiffs should recover twenty percent of the $15,956.37, or $3,191.27, by elimination of the Reserve for Possible Loss.”
As already noted, defendant filed no motion with the trial court outside of his belated motion for a new trial, to modify or change in any way the report of the referee, either as to findings of fact or conclusions of law. G. S. 1935, 60-2924, provides, in part, as follows:
. . The report of the referees upon the whole issue stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the referee is to report the facts, the report has the effect of a special verdict.”
In this case the referee was appointed to hear and determine all the issues.
The section providing for a new trial is G. S. 1935, 60-3001. It provides, as follows:
“A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee or a decision by the court. The former verdict, report or decision shall be vacated and a new trial granted, on the application of the party aggrieved, when it appears that the rights of the party are substantially affected.”
G. S. 1935, 60-3003 provides, as follows:
“The application for a new trial except for the cause of newly discovered evidence, must be made by written motion stating the grounds therefor, filed within three days after the verdict or decision is rendered, unless unavoidably prevented. Such motion may be heard and decided by the judge at chambers on reasonable notice to the parties.”
It will be noted the referee found that plaintiffs should recover $3,191.27 on the first cause of action on account of this item. Appellant argues the trial court erred in refusing to sustain his motion for judgment on the findings as to this item. In his argument he quotes at some length from the testimony before the referee on this point.
At the outset we are confronted with the question of the extent to which this question may be considered by us in view of this record. Plaintiffs argue there is nothing here before us.
Appellant did not question the correctness of the findings of fact. This is accentuated by a statement in his brief, as follows:
“The only question raised now by Lux is, Should judgment be rendered by the court on the findings of the referee and the trial court?
“We are not in any way attempting to have the court amend or change the referee’s findings of fact. We are satisfied with them. Why should we file a motion for a new trial under these circumstances?”
We have held that “the verdict or decision” referred to in the above statute includes the report of a referee on the whole issue. (See Milling Co. v. Schreiber, 102 Kan. 172, 169 Pac. 222.) That is a leading case on the subject. There we said:
“Under section 300 of the code, the report of a referee, determining the issues by findings of fact and conclusions of law separately stated, ‘stands as the decision of the court,’ and the first term of the equation stated above may be substituted for its equivalent in section 306. The word ‘verdict’ as used in section 306 includes the report of a referee, when the issues of fact only are referred. There are two kinds of verdict, general and special (§294), and if the issues determined by either kind are to be reexamined, it must be on motion for a new trial made within three days after the verdict is returned. But by express provision of section 300, ‘when the referee is to report the facts the report has the effect of a special verdict.’
“The result of the foregoing is that the time limitation of three days contained in section 306 covers every form of trial, whether by jury, by referee, or by the court, and in case of trial by a referee must be computed from the time the report is filed.”
The rule seems to have been first stated in Bank v. Refining Co., 89 Kan. 738, 132 Pac. 832. There we said:
“Where a referee is appointed to take the evidence and report the facts in an action, the evidence is usually taken out of court and in the absence of the judge. In such case the court does not review the evidence, but renders judgment in accordance with the report of the referee unless objection thereto is made, and error can not be here predicated upon a judgment involving the correctness of the facts found as shown by such report, unless a motion for a new trial has been filed and overruled. Section 305 of the code of civil procedure makes the same provision for a new trial where a judgment is based upon the report of a referee as when based upon the verdict of a jury or a decision of the court.”
See, also, Alexander v. Clarkson, 96 Kan. 174, 150 Pac. 576. There we said:
“There is some contention that no motion for a new trial was necessary because all that was asked was that plaintiff’s exceptions to the findings be sustained and different findings made from those reported by the referee, but this required a new trial and made necessary a motion for a new trial.”
We shall examine finding 22 with the idea of ascertaining whether it required a judgment for defendants on the item covered by it. The question being examined was whether the net worth figure in plaintiff’s Exhibit 1, the balance sheet furnished Potts when he left the company September 1, 1944, was correct, or if not correct, what items should be added to it and what items taken-away. The referee found that $15,956.37 should be added to it on account of a reserve fund for bad debts and that plaintiffs should recover twenty percent of that amount, or $3,191.27. It appears from the finding that under the regulations of the Internal Revenue Bureau a taxpayer has the option to either deduct as item of expense his actual losses and bad debts or to set up a reserve of one-fourth of one percent of accounts receivable as a reserve for bad debts. Defendants saw fit to adopt the latter course. Through the years they had operated by setting aside such a percent. By the time Potts left this amounted to $15,-956.37. The finding shows that as a matter of fact there were no bad debts. The company was a good collector. The result was that this amount was a part of the assets of the company. Defendants argue that this fund was a trust account set up to remain during the period that the company was in operation and could not be distributed as an item of net profits. No authorities are cited to sustain this view nor are we favored with the regulation of the Treasury Department or any statement as to the practices. It would seem odd that the company would be required to keep this fund intact on its books “ad infinitum.” Defendants quote at length from the record a colloquy between counsel for both parties at the time of the trial before the referee in which they argue counsel for plaintiffs conceded such to be the case. On account of the failure of defendants to file a timely motion for a new trial we shall not examine this record on the question whether the finding of fact was sustained by substantial evidence. Since this argument actually is directed at the proper conclusion of law to be drawn from the findings of fact we have examined it to see whether such a concession as is claimed by defendants was made by counsel for plaintiff. We find none. Defendants took the position that Potts was entitled to twenty percent of the current assets only. Once the accounting took the course that he was entitled at the time he left the company to twenty percent of the assets that had been built up through the years, then the conclusion is inescapable that this fund was part of the assets and Potts was entitled to his share of it. We conclude that this finding did not require a judgment for defendants as to this item.
The other item making up the judgment for plaintiffs on the first cause of action will be referred to as the item of fixed assets of the company. It consisted of warehouse equipment, trucks, office furniture and equipment and a store building located at Junction City. This item is dealt with in finding No. 24. The referee increased this item from $4,642.01, the amount at which this item was carried on the books of the company, to $14,078.57. These assets were carried on the balance sheet made up by McKnaught at the book value as $4,642.01. . As a bookkeeping practice, this property was put on the books wherein it was acquired at some figure. The record does not disclose'just how that figure was arrived at. At any rate for income tax purposes depreciation was taken each year. For instance, the book value of the warehouse equipment was $739.40, and against this had been charged depreciation so that-the book value for purposes of the balance sheet was $78.83. The same practice had been followed as to the other items. The referee found all these items were worth $9,436.56 more than the $4,642.01, at which the property had been carried on the balance sheet furnished Potts. Twenty percent of this was $1,887.31, for which judgment was entered. Defendants argue that there was no evidence at all upon which the referee based this increase in value of these assets. The defendants filed no motion for a new trial and did not attack this finding in any manner. They have insisted in their brief in this court that they were satisfied with the findings. The only motion they filed in the trial court was for judgment on this finding among others, that is, they argued before the trial court that even though this finding was correct, still they were entitled to judgment. In this court for the first time on appeal they make the argument that this finding was not sustained by the evidence. We shall not consider on appeal an error that was not presented to the trial court. (See Waller v. Capper, 143 Kan. 164, 53 P. 2d 836; Lish v. Wehmeyer, 158 Kan. 339, 147 P. 2d 712; and Lechleitner v. Cummings, 159 Kan. 171, 152 P. 2d 843.)
We have, however, examined the record on this point. The referee took the value at which these assets were put on the books and then noted how much this value had been depreciated. The result was so low that it would have been absurd to find this to be the actual value. There were included a Pontiac sedan and six trucks, one of them refrigerated. The book value was only $4,914.71, and this had been depreciated down to $1,380.70. In August, 1944, there was no established market price for this equipment. It would not do to take the replacement cost. That would not be fair to defendants. It would be too high. The referee considered the book value and original cost and disregarded the depreciation allowed to be taken by the revenue department. Original cost is a proper element to be considering in fixing value. (See 20 Am. Jur. 338, 339; State v. Handler, 142 Kan. 455, 50 P. 2d 977; and City of Baxter Springs v. Foshay Co., 110 Kan. 409, 204 Pac. 678.)
We have concluded that finding 24 does not require judgment for the defendants.
We go now to a consideration of the second cause of action. This deals with an adjustment plantiffs argue should be made on the books of the company on account of the fact that the company paid the income taxes of S. E. Lux, Jr., during all the years the company was in operation. The plaintiffs pleaded in their petition that the amounts paid Potts from time to time were not the full amounts due him because the net profits were decreased by charging the personal taxes of Lux to the expenses of the company. Lux admitted in his answer that deductions were made from the gross profits to pay his income taxes but alleged that the written contract had been interpreted by all the parties to mean that this should be done and further that the deductions appeared on each annual statement that was furnished each year to all the parties and all the parties, including Potts, agreed to them. The answer pleaded that from 1941 to 1944 taxes on the income of Lux, exclusive of income from Lux-Witwer, were deducted in the amount of $6,591.80, and for the same years taxes on his income were withheld in the amount of $128,785.11, making in the aggregate income taxes of Lux amounting to $135,376.91 were paid by the company and these payments were in the annual statements and accepted each year by all the parties.
The referee dealt with this question in finding 12, 13, 14, 27, 28, 29, 30, 31, 32 and 33. They are, as follows:
“FINDING No. 12.
“During all of the time from 1929 to September 15, 1944, defendant Mc-Knaught had charge of the keeping of the books and records of the company, and kept such books under the direction and supervision of defendant Lux. Harry W. Potts had no part in keeping the books and records and was not consulted as to the manner in which they were kept. At least once a year, statements were prepared from such books and records by H. W. Gifford, of the firm of Brelsford & Gifford, certified public accountants.
“FINDING No. 13
“The statements prepared by Mr. Gifford each year were taken direct from the books of the Lux-Witwer Company and no attempt was made to go behind the books and check other records. The statements therefore would not necessarily reflect actual values of the assets at any particular time. The statements would also contain the same errors which may have been in the books themselves. There was admittedly some ‘loose bookkeeping,’ but so far as the evidence shows, such ‘loose' bookkeeping’ consisted for the most part in making somewhat unusual charges or credits to certain accounts. For example there is evidence that income taxes of S. E. Lux Jr., may have been charged to merchandise in 1939 and 1940 and, apparently for convenience, the investment in the Manhattan store was carried in Accounts Receivable.
“FINDING No. 14
“The Gifford statements referred to in the above finding were ordinarily examined and discussed by Lux, Potts, Listz and McKnaught shortly after they were prepared and delivered at least once a year; but the discussion was principally directed to increases or decreases in costs in the particular departments and the net results as to profit and loss. Many of the items in question in this case did not appear as separate items on these statements, and there is no evidence that any such were pointed out and separately discussed when the statements were examined. These statements were explained to some extent by Mr. McKnaught, but the explanation was not sufficient to enable either Lux or Listz to explain any of the items on any of the statements, or the form and contents of the statements generally. Neither Listz nor Potts had any contact with the bookkeeping part of the business or any knowledge of the books from which these statements were prepared and Lux had very little, if anything, to do with the keeping of the books. It m.ust be concluded (even allowing for the natural failure, because of lapse of time, to remember particular meetings) that the examinations of the statements were not more than cursory; but there is no evidence of any deliberate attempt to conceal facts or any attempt on the part of anyone to restrict discussion or limit inquiries of any of the associates.
“FINDING No. 15
“The documentary evidence introduced tends, for the most part, to show that the parties regarded the organization as a sole ownership rather than a partnership.
“(1) The 1939 agreement refers to S. E. Lux, Jr., as Sole Owner.
“(2) The financial statements and balance sheets are obviously set up on the theory of sole ownership. The use of such terms as ‘Employees’ Accounts’ to refer to amounts not withdrawn by Potts, McKnaught and Listz and ‘Net Worth’ to refer to Lux’s capital investment plus his share of profits not withdrawn (exclusive of his interest account) would not be appropriate to a partnership or ordinary joint enterprise. Neither this nor other bookkeeping methods are conclusive, of course, because it is not shown that Potts had anything whatever to do with the books or statements; on the contrary, it is definitely shown that he had nothing to do with their preparation. Nevertheless, the statements and other documentary evidence are competent evidence to show how the parties (other than Potts and perhaps Listz) interpreted the arrangement and it is significant that there is no documentary evidence that definitely supports the partnership theory, unless it is the original agreement itself.
“(3) Personal property statements were filed in the name of Lux-Witwer Company, and signed either by Lux or McKnaught.
“(4) Leases and insurance policies were taken in the name of S. E. Lux, Jr., doing business as the Lux-Witwer Company, as was the indemnity bond on employees handling money.
“(5) Tax returns and licenses of various kinds were, for the most part, made in the name of S. E. Lux, Jr., doing business as the Lux-Witwer Company, and some of these documents refer to Lux as ‘individual owner’ or ‘owner.’
“(6) The forclosure proceedings in connection with the Trego County farm were brought in the name of S. E. Lux, Jr., doing business as the Lux-Witwer Company, and the sheriff’s deed resulting was issued in that style.
“(7) The bank account, letterheads, invoices, advertising and directory listings were in the name of the Lux-Witwer Company, with nothing to indicate whether the company was solely owned, a partnership or joint enterprise.
“(8) No partnership returns were filed with the Collector of Internal Revenue. Lux never reported any income from a partnership. Potts reported no income from a partnership in 1943 or 1944 and there is no evidence that he ever reported any income as partnership income.
“FINDING No. 16
“Late in August of 1944, it was agreed that Potts would terminate his connection with the Lux-Witwer Company. He was not discharged and the decision was apparently his own, although it is not clear whether it came about on account of illness or because Potts felt that his associates thought he was no longer of value to the company. Plaintiffs allege that the time of termination was September 16, 1944, and that Potts’ compensation or share of the assets should be computed as of that date. McKnaught’s original answer admitted that September 15 was the date agreed upon but his amended answer stated that the date of termination of Potts’ employment was September 1, 1944, and McKnaught testified that Potts had agreed to work until September 15 for his salary alone, in order that McKnaught would have time to prepare a statement as of September 1. There is no other testimony directly on this point, although there is no question but that Potts did work until September 15. Although McKnaught’s verified original answer gave the date as 'September 15, his amended answer conforms to the proof. As in other disputed points, it is regrettable that there was no way to hear Potts’ testimony on what was admittedly an oral agreement, but the referee finds that the allegations in the petition, although first admitted by McKnaught’s original answer, and the fact that Potts worked until September 15, are outweighed by the amended answer, supported by proof, and by the fact that the statement itself, prepared for the very occasion, was as of August 31. Some stopping point would be necessary at the end of any profit sharing agreement, and September 1 would be the normal date, if, as is agreed, Potts had definitely withdrawn in the latter part of August.
“FINDING No. 17
“Under the written agreement the termination of the connection of Harry W. Potts with the Lux-Witwer Company gave him a right to a share of the undistributed profits although there was no receivership, forced sale, or liquidation in the ordinary sense. The defendants submitted to Potts a statement which was prepared by McKnaught, and it has been put in evidence as Plaintiffs’ Exhibit 1 and is made a part of these findings by reference. This exhibit consists of two pages, the first of which purports to show income and expenses from January 1 to August 31, 1944; the second page purports to show assets and liabilities on August 31, 1944. Defendants tendered-to Potts twenty percent of the net profit shown on Exhibit 1, or $5,772.00, less withholding and social security taxes, but Potts refused to accept the tender in full settlement. On account of certain errors or duplication of items brought out in the course of the hearings, the tender was increased to $6,642.49, less withholding taxes and less an item of $1,544.19 representing withholding tax on amounts paid Potts in 1943, which defendants claim were, by error, not deducted, but paid by defendant Lux. The omission to deduct the 1943 withholding tax from Potts’ 1943 compensation was not pleaded in defendants’ answers except as it may be included in the admission that ‘the sum of $5,-662.00, less lawful deductions for Social Security and withholding taxes’ was due Potts. It is clear that the statement contained no substantial deviation from the usual methods of preparing statements — that is, the items so far as could be, were taken from the regular books, and no attempt was made to fix actual values where they differed from the book values. Certain items were necessarily estimated; in particular, the item of merchandise inventory, because an actual inventory of merchandise in the Lux building was not taken at the time. However, there seems to be no serious dispute concerning this particular item; there is testimony that Potts estimated the value of the merchandise in the Lux. building to be $90,000.00, that Lux’s estimate was $95,-000.00, and that the latter figure was used.
“FINDING No. 18
“The assets of the Lux-Witwer Company on August 31, 1944, consisted of merchandise on hand, office equipment, warehouse equipment, automobile equipment, a building at Junction City on land leased from the Union Pacific Railroad, a retail store at Manhattan known as the Quality Market, cash on hand and on deposit, accounts receivable, and good will.
“The second page of Plaintiffs’ Exhibit 1 is a balance sheet, which constitutes the only account submitted to plaintiffs by defendants purporting to show the assets of Lux-Witwer on August 31, 1944. The items on the balance sheet which have not been questioned or which conform to the evidence should be accepted as correct.
“Any assets not reflected in the balance sheet which represent undivided profits in which plaintiffs should share should be added, and questioned items should be revised to conform to the evidence.
“FINDING No. 19
“The balance sheet shows an item of $68,334.00 designated ‘S. E. Lux, Jr.Interest Account.’ The evidence and exhibits show that this is a correct statement of accumulation of interest due Lux on his original investment of $100,-000.00, and which was not withdrawn by him, but left in the 'business.
“The balance sheet further shows an item of $173,860.00 designated ‘Balance Net Worth 8/31/44.’ The form of balance sheet is clearly based on the assumption that the Lux-Witwer Company was solely owned by S. E. Lux, Jr. Under that theory, the item, together with the Interest Account, represents the net worth of S. E. Lux, Jr., doing business as Lux-Witwer Company, before distribution to the employees of their percentages of profits for the first eight months of 1944. Upon the system of bookkeeping used, the item is necessarily made up of $100,000.00 original capital, to whioh plaintiffs make no claim, plus the accumulation of that part of Lux’s sixty percent share in' the profits which he had not withdrawn. It could' not accumulate any other way but by writing up of asset values, or by manipulation of the books whereby what should have been credited to other accounts was added to net worth. There is no evidence to indicate any writing up, or wrongful additions in bookkeeping. It follows that apart from Potts’ share in the 1944 profits included in the item, he has no right to any part of the ‘Net Worth’ item as such.
“FINDING No. 20
“About 1934 or 1935, the Lux-Witwer Company acquired a retail grocery store in Manhattan, Kansas, known as the Quality Market. Certain merchandise was originally acquired in satisfaction of a debt and the parties decided to operate the store, which they did, taking over the debtor’s lease. Between 1935 and 1944 the store earned over $35,000.00 in net profits, and had net worth according to its statement of $21,363.94, on April 15, 1944, which was the last time a balance sheet was prepared prior to August 31, 1944.
“The original debt owed Lux-Witwer was paid out of the profits of the store, but the Quality Market was not set up as a separate asset on the Lux-Witwer books. Instead, the matter was handled by setting up two accounts in Lux-Witwer’s accounts receivable ledger, one of which was for merchandise purchased from Lux-Witwer, just as in the case of other retail customers. This account need not be considered further, because it has no bearing on the issues.
“The other account may be designated Quality Market ‘Profit and Loss Account.’ Quality Market had its own set of books from which its profits were determined each year. Such profits were in each year credited to Lux-Witwer’s Sales Account, and as no compensating amount of merchandise went out of Lux-Witwer’s stock, the method had the effect- of adding in each year Quality Market’s profit to Lux-Witwer’s gross profit. The same amount credited to sales was charged on the Lux-Witwer’s books to the ‘Profit and Loss’ account receivable, that being the offsetting entry. Now, this yearly profit was not necessarily cash — in fact it certainly was not all cash in any year — but it was a realized profit whether invested in fixtures, additional stock, or what not, and that part not actually withdrawn had the effect of increasing the net worth of Quality Market as shown on its own books. In other words, as the account started from scratch, so to speak, a net worth could only be built up from profits, and the net worth of Quality Market shown on its balance sheet must represent profits not distributed in cash.
“The fact to be determined is therefore narrowed to the answer to this question : Is the net worth of Quality Market carried in the Lux-Witwer statement in any form as an asset? If it is not, then the plaintiffs would be entitled to a percentage of it as it would represent undistributed profits not disclosed by Exhibit 1. On the other hand, if it is so carried (and obviously, if carried, it is in Accounts Receivable), Potts had already received his share because all net profits of Quality Market, including that part plowed back in the business and represented by the term ‘net worth’ had been in previous years added to Lux-Witwer’s gross profits.
“The testimony on the point is somewhat confusing, and plaintiffs contend that the testimony of McKnaught was not consistent. It is true that his testimony as plaintiffs’ witness includes an answer which would, taken alone, indi cate that apart from Quality Market’s current account (merchandise purchased from Lux-Witwer in the ordinary course of business) nothing was carried as a Quality Market asset in the Lux-Witwer Books. At that time no balance sheet of Quality Market had been introduced, and consequently there were no inquiries directed to the item of ‘net worth’ on what was later introduced as Plaintiffs’ Exhibit 27.
“As defendants’ witness, McKnaught, on cross examination, testified that the net worth was ‘carried in our Accounts Receivable,’ and stated that Quality Market had no capital account. This statement was borne out by Gifford. This witness also said that he had seen balance sheets of the Quality Market on occasions and that the net worth shown there agreed with the balance in the Accounts Receivable (Profit and Loss Account of Quality Market). McKnaught’s final testimony on the subject is also consistent with this view, and, in fact, this unorthodox method of handling the bookkeeping relating to the Manhattan store having once been adopted, the result would necessarily be that the Profit and Loss acount would reflect the net worth of the Quality Market; otherwise the books would not balance. The only other explanation would be that only cash withdrawn, not the actual profits, were credited to Lux-Witwer sales each year, and there is no testimony indicating that.
“It now appears that it would have been better to introduce the ledger sheets of this Profit and Loss Account, in order that the balance could be checked with the Net Worth item, but what are at first glance inconsistencies in the testimony may very well have resulted from misunderstandings as to the ultimate result of the bookkeeping entries concerning which the witness testified.
“The finding on the point is that nothing additional is due the plaintiffs on account of the Quality Market transaction.
“FINDING No. 21
“Between 1939 and 1941 the Lux-Witwer Company acquired a half section of land in Trego County, Kansas, generally referred to in the evidence as the Trego County farm. This farm was acquired by foreclosure of a mortgage given to secure a merchandise debt to the company, and was carried on the books and statements of the company for 1941 and 1942 as an asset at the book value of §8,451.85, representing the original merchandise account of about §6,000.00 plus a first mortgage paid off by Lux-Witwer, and expense of foreclosure.
“This farm was sold on December 15, 1943, for §8,000.00 and was not carried on the Lux-Witwer balance sheet thereafter. The comparative Income and Expense accounts of Plaintiffs’ Exhibit 17 reflect the rental income from the farm and an expense item in 1943 of §451.85, which according to the testimony represented the book loss on the Trego County farm. There is not on Exhibit 17 any specific item showing how the $8,000.00 proceeds of the sale of the farm was credited, but it would in the ordinary course of business have been credited to sales and would be reflected in the balance sheet by an increase in the item ‘Cash in Bank.’ In the absence of evidence to the contrary, it should be assumed that such was the case, even though the ‘Sales’ item does not separate sales of merchandise from other sales. No departure from the usual method of bookkeeping is shown in this exhibit, and it cannot fairly be assumed that ‘Sales’ represented only ordinary sales of merchandise. It no doubt included not only the Trego farm proceeds, but also profits of the Quality Market (see Finding 20), which were not actually sales of merchandise.
“The finding is that plaintiffs should recover nothing on account of the Trego farm transaction.
“FINDING No. 22
“In Plaintiffs’ Exhibit 1, there is deducted from the accounts receivable the sum of $15,956.37. This reserve was accumulated through the years by charging to expense one-fourth of one percent of all credit sales and crediting same to this reserve; bad debts were charged against the reserve. Lux-Witwer had elected to set up a reserve in a percentage permissible under regulations of the Internal Revenue Bureau, instead of charging off its actual losses in bad debts.
“So far as the testimony shows the amount of the reserve did not necessarily indicate the probable losses, and in fact, there were no> losses in any of the Accounts Receivable which made up the asset item on August 31, 1944. The fact that the accounts were all collected after August 31, 1944, is not conclusive of their fair value as of that date, but on the other hand there is no evidence to the effect that they were doubtful or worth less than their face value. Subsequent experience showed that they were worth their face value, and the fact that the governmental authorities frown upon distribution of parts of the reserve has no bearing on the true value of the accounts receivable ; but their value had, however, a direct bearing on what were or were not undistributed profits to which plaintiffs under the contract are entitled to share.
“Plaintiffs should recover twenty percent of the $15,956.37, or $3,191.27, by elimination of the Reserve for Possible Loss.
“FINDING No. 23
“About May 1, 1936, the Lux-Witwer Company moved into the building at 125 North Kansas Avenue and occupied it continuously to August 31, 1944. During this period the Lux-Witwer Company paid to S. E. Lux, Jr., $550.00 per month rent for the building. During the same period S. E. Lux, Jr., leased this building from the National Bank of Topeka, Trustee of the S. E. Lux, Sr., Estate, at a rental of $400.00 per month up to September, 1942, and at $250.00 per month from September, 1942, to the end of the period. Lux retained the difference between the $550.00 per month collected from Lux-Witwer and the rent paid by him to the Trustee. It is indicated that McKnaught believed' the entire' rental paid by Lux-Witwer went to the Trustee. Lux testified that for the first part of the period the difference was accounted for by the fact that he rather than the Lux, Sr., Estate, had installed and owned the refrigeration equipment and that it had been agreed with his father that Lux, Jr., owned the refrigeration equipment and was entitled to part of the rent. .This is borne out by a previous lease made in 192^' between S. E. Lux, Sr., and S. E. Lux, Jr. This lease not only set out what property belonged-to S. E. Lux, Jr., but also provided that on account'of it he should receive two-fifths of. the ■rent (at that time there was a sublease to United Stores). The latter increase in the amount Lux withheld (after 1943) he accounted for by testifying that the arrangement had been agreed upon with the other beneficiaries in the trust estate, his three sisters who had no money to take care of repairs (their written consent is attached to the lease), that he took care of repairs, putting on several new roofs, fixing the elevator, etc. In his testimony later he stated he did not recall any particular instances of repairs that he had paid for himself, but said that there had been some.
“Plaintiffs contend that Lux’s retention of part of the rent constituted a breach of faith with his associates and that his personal account should be charged with the amounts retained. However, there is no evidence indicating that $550.00 per month was an unreasonable rent for the building, except what might be implied from what the Trustee was willing to accept. There is no evidence showing whether or not the trustee and beneficiaries knew what Lux-Witwer was paying. Lux was of course under a duty as a party to the profit sharing contract and also holder of the building lease, not to charge Lux-Witwer with a rent which was unreasonably high, because such an action would reduce his associates’ profits while enlarging his own outside income. But as stated above, the evidence does not show that the building rent was out of line; and if Lux had a duty to account for the amounts he retained, the duty would be primarily one to his sister, not to his profit sharing associates, who had no right under the contract to except [expect] that the Lux-Witwer Company would be charged less than a fair and reasonable rental for the building.
“The finding therefore is that plaintiffs should recover nothing on account of the rentals.
“FINDING No. 24
“On Plaintiffs’ Exhibit 1, one of the assets listed is ‘Book Value-Fixed Assets-$4,642.01.’ The testimony and exhibits show that this.was made up of the following items:
“Warehouse Equipment .................... 739.40
Office Equipment ......................... 5,170.97
Automobile Equipment ................... 4,914.71
Building — Junction City .................. 2,920.84
Equipment — Junction City ................ 332.65
$14,078.57
Less Accumulated Depreciation .......... 9,436.56
$4,642.01
“The book value, of course, has no relation to the actual value as of August 31, 1944.
“The warehouse equipment included at that time about six two-wheel trucks worth $39.00 each, eight or ten flat trucks worth $50.00 to $60.00 each, three scales worth $25.00 to $30.00 each, and some smaller articles such as benches and scoops. Some of the warehouse equipment still used belonged to Lux before 1929.
“Office equipment included three typewriters, two adding machines, seven desks and chairs, fifteen stacks of filing cases, a comptometer, linoleum, fluorescent light, gas heater, electric fans, signs, and a Burroughs posting machine which had cost $1,854.00 in 1942.
“The automobile equipment included six delivery trucks, one of which was specially built with refrigeration equipment, and one 1942 Pontiac sedan.
“The Junction City building was constructed on leased ground in 1941 at a cost of $2,920.84. Equipment in connection with it was refrigeration equipment. It had been used as a warehouse for a short time but was later rented to the Concordia Ice Cream Company. The rent in 1944 was $90.00 per month. The average net income for 1942, 1943 and 1944 was about $270.00 per year.
“There is very little evidence on which to base a finding of the value of the Fixed Assets as of August 31, 1944. A finding based on replacement value would certainly be unfair, and many of the items simply could not have been replaced at that time. On the other hand, the book value after depreciation, is clearly too low and no doubt would be too low on almost any date, because as much depreciation is usually taken for tax purposes as may be allowed by the Internal Revenue Department. •
“The Junction City property on the basis of net return would probably have been worth $5,000.00, or even $6,000.00, if one were to value it on the assumption that war-time conditions would continue indefinitely.
“It seems probable that the actual worth of the Fixed Assets at the date in question was equal to the book value before deducting accumulated depreciation. It is necessarily an approximation, in the absence of evidence on each item. In making the approximation the referee has in mind the probable fact that the Fixed Assets could have been sold for substantially more at the time, but that a fair evaluation should not be based on temporary conditions of scarcity.
“The amount of $9,436.56 should be added as undivided profits under the contract, and plaintiffs should recover twenty per cent of that amount, or $1887.31, on account of undervaluation of the fixed assets on the balance sheet.
“FINDING No. 25
“In 1921 S. E. Lux, Jr., had installed in the building later occupied by Lux-Witwer refrigerator equipment at an expense of $25,000.00 or $30,000.00. This equipment was his personal property (see Finding 23), and he kept it in repair while the building was rented to United Stores. After Lux-Witwer moved in in 1936 the company made the necessary repairs.
“In 1938 the Lux-Witwer Company entered the business of handling frozen foods. For this purpose a large room was equipped with additional insulation, sufficient to permit a temperature of zero to be maintained. The expense of the equipment in this room was not capitalized, and there is no item on the balance sheet representing the asset value of the refrigeration equipment, although on the December 31, 1945, balance sheet a frozen food refrigeration room appeared on the balance sheet in the amount of $20,117.68. Defendants testified that this item represented additional refrigeration equipment installed in a separate building after Potts left the company. McKnaught and Lux testified that the refrigeration rooms in use throughout the time Potts was with the company were from time to time repaired, and replacement of in sulation made frequently; that the special equipment in 1938 was simply additional insulation. The expensé of repair and replacement was substantial but the evidence as a whole does not support the plaintiffs’ contention that amounts so charged to expenses were actually capital expenditures which should have been shown as capital assets on the balance sheet, and the referee therefore finds nothing is due the plaintiffs on account of the refrigeration equipment.
“FINDING No. 26
“On August 31, 1944, the Lux-Witwer Company had been in operation fifteen years. It had favorable contacts with brokers and customers and was a going business. Over a ten year period its average yearly sales had exceeded $1,100,000 and its average net profits had been over $32,000.00 a year. In the five years preceding August, 1944, its annual net profits had averaged over $42,000.00. These average earnings included amounts paid as interest and amounts paid for income taxes. Its quotas had been set up so that it could get merchandise under government rationing, and through its contacts with producers and brokers in the past, it was able to get goods which were scarce at that time. Much of this favorable treatment was due to Potts’ personal standing in the industry.
“The good will of such a business has a value and a business is ordinarily worth more as a going concern than the worth as shown on its balance sheet, assuming, as in this case, that good will was not given any value in the statement. Ned Fleming, a witness with extensive knowledge of the wholesale food business, testified that there was a pretty generally accepted formula in that business for estimating the total value of a business — that formula was eight times the average earnings over a period of five or ten years. Using this formula for the ten year period, the value over and above this statement would be in the neighborhood of $70,000.00, which would necessarily be a valuation of good will. Use of the five year period would about double this valuation of good will.
“If Lux-Witwer Company had been a partnership the plaintiffs would have been entitled to a percentage of the value of the good will (Gelphman vs. Gelphman, 142 Kansas 582), but in view of the conclusion that the contract was really one of employment, with profit sharing features, the finding on this point must be that plaintiffs are not entitled to any part of the estimated value of good will.
“FINDING No. 27
“The statements from 1929 to 1938, inclusive, show no payments by Lux-Witwer Company for state or federal income taxes for any person, and Gifford, who prepared the statements, testified that he was certain that the S. E. Lux, Jr., income taxes were not charged to expense prior to 1939. He also testified that he had been informed by an agent of the Bureau of Internal Revenue that in 1939 and 1940 S. E. Lux, Jr’s, federal income taxes (which would be his taxes for 1938 and 1939) were paid by Lux-Witwer and charged to ‘merchandise purchases.’ In the absence of evidence to the contrary, the finding must be that the Lux income taxes were first paid by Lux-Witwer Company in 1939 and charged to expense under the heading ‘merchandise purchases,’ as was also the case in 1940.
“FINDING No. 28
“In 1941, for the first and only time certain income taxes of S. E. Lux, Jr., were carried on the statement as such, in the amount of $5,184.15. This item represented a special charge resulting from an investigation of the Internal Revenue Department covering four or five previous years. It did not represent 1940 or current taxes. In this case plaintiffs concede that all parties sharing in profits had benefitted by the errors which caused the profits to be recalculated, had received additional distributions thereby and they make no claim for a share of this item. This does not seem consistent with plaintiff’s position on the other income tax items, because the concession apparently has the effect of saying that had the errors not been made, the payment of Lux’s income tax by Lux-Witwer would have been a proper deduction from profits in which Potts shared. However, this particular item had been discussed by all parties and it might very well be held under the evidence that Potts expressly consented to the charge.
“FINDING No. 29
“In 1940 the Lux-Witwer Company made no profit, and none of the personal income taxes of S. E. Lux, Jr., for the year 1940 were paid by the company or charged to expense on its books. At that time both state and federal income taxes were payable in the year following the year in which the income was earned, so that 1940 taxes would have been payable in 1941, but the only tax paid in 1941 was the special charge mentioned in Finding 28, which was paid in one payment in October, 1941, and was not the 1940 tax.
“FINDING No. 30
“The entire personal income taxes of S. E. Lux, Jr., including that attributable to his income other than that from Lux-Witwer Company, for the years 1941, 1942, 1943 and 1944, were paid from Lux-Witwer funds and charged to expense. The taxes were included under the heading of ‘Taxes and Licenses’, which appeared on the statements which were furnished at the end of each year, but the evidence tends to show that the item was not specially discussed, if at all, in the meetings.
“FINDING No. 31
“It is not alleged, or shown by the evidence, that there was any modification of the written contract of 1933 insofar as it related to taxes, and defendants state that the contract was interpreted from the beginning by all the parties to authorize the payment of the personal income taxes of S. E. Lux, Jr.
“Strictly speaking, that part of the contract under which the company was being operated in 1941 to 1944 contains no mention of taxes. T¿e word ‘taxes’ appears only in the paragraph relating to salary bonuses of specific amounts to Potts, McKnaught and Listz (not to Lux). These bonuses were discontinued before 1941. The following is the only sentence referring to taxes:
“ ‘The Net Profit mentioned above is to be figured after the regular reserves for Taxes, Depreciation, etc., have been set up.’
“The term ‘Net Profit’ is used for the first time in the contract at the beginning of this same paragraph; and in all other parts of the contract, including the paragraph fixing the shares in percentages, the words used are ‘profit’ or ‘profits’, without definition.
“Assuming, however, for the purpose of this finding, that the quoted sentence was intended to refer to profit or profits, wherever mentioned, there remains the question of whether it would justify a charge for the Lux personal income taxes. Granting the defendants’ contention that the parties had a legal right to make such a contract, it would still be such an extraordinary business arrangement that only specific words or very positive evidence that Potts so interpreted it would justify a finding that the contract authorized the charge. Bearing in mind that this was not a corporation, the ordinary and reasonable meaning of the word ‘taxes’ is property and license taxes. The defendants’ interpretation could even have cut down Potts’ share when the company’s earnings were highest, if Lux’s sixty percent, added to his outside income were taxed in very high brackets. The mere mechanics of computing Lux’s taxes, if they were to be charged to Lux-Witwer’s expense, before his sixty percent was computed, are enough to call for special and unusual formulas. True, the remarkable possibilities of such a contract would not have been so apparent in 1933, but the taxes were evidently not paid by Lux-Witwer until 1939, and even then in such a manner that even the Certified Public Accountant who prepared the statements was not aware of the payment.
“The referee finds that the payment by the Lux-Witwer Company of the income taxes of S. E. Lux, Jr., was not authorized by the contract, and that the evidence did not sustain the defendants’ contention that Potts had agreed to their interpretation.
“FINDING No. 32
“The personal income taxes of Potts, McKnaught and Listz were never paid by or charged to the expense of the Lux-Witwer Company.
“FINDING No. 33 .
“The amounts of personal income taxes of S. E. Lux, Jr., which were charged to expense in 1941, 1942 and 1943 are admitted in paragraph (8) of his amended answer to be as follows: For the year 1941, $7,261.42; for 1942, $19,852.19 plus $1,253.69; for 1943, $53,137.06 plus $3,609.05, making a total to the end of 1943 of $85,113.41. To this should be added the sum of $12,094.16 which was charged to general expenses in Plaintiffs’ Exhibit 1, as 1943 tax paid in 1944, but which is not conceded to be a duplication, and for which defendants have made an additional tender. This makes a total of $97,207.57 charged to expense for 1941, 1942 and 1943 tax, which reduced the profits in which Potts was to share for those years in the percentage of twenty percent, and plaintiffs should therefore recover twenty percent, or $19,441.51.”
Following these findings the Referee made conclusion of Law No. VI, as follows:
“The written contract did not authorize payment of S. E. Lux, Jr., state or federal income taxes from the funds of Lux-Witwer Company, and it is not shown by competent evidence that Potts agreed to an interpretation authorizing such payment.”
The first argument of defendants on this point is that the contract itself by its express terms provided that these taxes should be paid before profits could be divided. The clause of this contract upon which they rely is, as follows:
“The Net Profit mentioned above is to be figured after the regular reserves for Taxes, Depreciation, etc., have been set up.”
This argument is not seriously urged by defendants. Indeed it would be so unusual for the words “regular reserves for taxes” to be held to cover such an item as the income taxes of one of the parties that the statement of the proposition would seem to be its best refutation. Besides the best answer to his argument is that the payments were carried under some other head on the books.
The defendants do seriously urge that the annual statements were accounts stated extending over a period of fifteen years and the plaintiff should not be permitted to recover any additional amounts than the amounts found due him based on these statements. Many authorities are cited where it is held that parties cannot go behind accounts stated.
The best answer to- this argument is that for the years 1939 and 1940 the personal income taxes of Lux were charged to expense under the head of merchandise purchased. The expert accountant did not know of it when he was making up the accounts. The referee did not find that Potts ever knew such a charge was being made. None of the parties gave any explanation for such a charge. It is difficult to conceive of any reason for carrying on the books in such a manner, except to conceal the fact that it was being made even from the accountant who was making up the annual statements. At any rate, none of the statements set out any income tax item except 1941 when such an item appeared for a special reason for that year. It is the rule that an account stated is only prima facie evidence of its correctness. (See Clark v. Marbourg, 33 Kan. 471, 6 Pac. 548; McCue v. Hope, 97 Kan. 85, 154 Pac. 216; Rodgers v. Slavens, 101 Kan. 4, 668 Pac. 1088; Swaller v. Milling Co., 116 Kan. 329, 226 Pac. 1001; and 1 Am. Jur., pp. 285-287, sec. 30 and 31.
The matter is dealt with as well as anywhere in Swaller v. Milling Co., supra, as follows:
“What are legally sufficient reasons for not permitting an account stated to be final and conclusive? Fraud, of course; but there are other reasons. Error, omission and mistake are also sufficient.” (p. 342.)
Here McKnaught, one of the defendants, kept the books. He caused the payment of the Lux income taxes to be carried on the books under other heads. No fraud is pleaded and none is found but such a practice was to say the least irregular. There is no mystery about the law of accounts stated. It springs from the rule of fair dealing that one cannot take two irreconcilable positions. Here defendants are relying on a finding that they concealed an item on the books so that an expert accountant could not find it and then arguing that Potts was bound by such a statement. We have 'concluded the argument that the annual statements were accounts stated so that Potts could not go behind them is not good.
Defendants next argue that all the parties interpreted the contract to mean that “taxes used in it meant taxes.” How could Potts make such an interpretation when he did not know about the taxes being paid and charged? This argument is not good.
The same answer may be made to the argument that Potts is estopped by the statements from making an additional claim.
Defendants next point out that the 9th conclusion of law ordered judgment for the plaintiff “with interest on said amounts at the rate of six percent per annum from August 31, 1944.” The judgment of the trial court included an item for this interest. Defendants argue that this was error because the claim on August 31, 1944, the date when Potts severed his connection, was unliquidated. They argue that interest may not be allowed before judgment on an unliquidated claim except from the time the claim is judicially determined. The statute on interest is G. S. 1935, 41-101. It reads, as follows:
"Creditors shall be allowed to receive interest at the rate of six percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the same and ascertaining the balance; for money received for the use of another, and retained without the owner’s knowledge of the receipt ; for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts; for all other money due and to become due for the forbearance of payment whereof an express promise to pay interest has been made; and for money due from corporations and individuals to their day or monthly employees, from and after the end of each month, unless the same shall be paid within fifteen days thereafter.”
There are two provisions of the above section pursuant to which interest might have been allowed in this case. The amounts due plaintiffs were for practical purposes liquidated — all that remained once the question of law was settled was to compute the amount of applying the twenty percent. (See Smith Bros. v. Hanson, 106 Kan. 32, 187 Pac. 262; Emerson v. Indemnity Association, 112 Kan. 426, 211 Pac. 622; Young v. Newbold, 119 Kan. 394, 239 Pac. 1106; also, Thompson v. Howard Motors Co., 122 Kan. 339, 252 Pac. 468.)
The money found to be due plaintiffs was due Potts on September 1, 1944. His' widow has been kept from it ever since. If she ever receives any of it, it will be more than four years after it was due and at the end of expensive and vexatious litigation. During all this time defendants have been using plaintiff’s money to carry on its business. We have concluded that the trial court did not err in allowing interest to the amount found due plaintiffs.
It follows that the judgment of the trial court is affirmed as to the defendant’s appeal.
We go now to the cross-appeal of plaintiffs. The referee found in favor of the plaintiffs on the items that have been discussed and in favor of defendants on many others. None of these items have to do with the first cause of action.
The first of these we shall consider is referred to as the overcharge on rent. The referee dealt with it in Finding No. 23, quoted above.
Their argument amounts to a request that we examine the evidence and reach a different conclusion on the facts. But little would be added to this opinion by detailing the evidence on this point. Suffice it to say that while a different result as to the facts might have been reached by the trier of the facts, there was substantial evidence to sustain the finding and we will not reexamine it here on appeal.
The same may be said of the next five items argued by plaintiffs. Plaintiffs ask us to go into the accounting action and actually have another accounting on the record. This we never do.
The next item argued by plaintiffs has to do with the third cause of action. In it plaintiffs claimed in their petition that the amount due Potts should be increased because S. E. Lux, Jr., from 1941 on arbitrarily conveyed to S. E. Lux III, his son, ten percent of the annual net profits. The referee dealt with this in Findings 35 and 36. In these he found that the written contract was orally modified by all the parties to permit this. There was substantial evidence to sustain this finding and there is nothing we can do about it.
Plaintiffs argue that the trial court should have made two findings suggested by them as to the profits for 1944 rather than the findings that were made. Again we find that the findings of the trial court were made on substantial evidence and we will not disturb them here.
The next argument of plaintiffs has to do with the relationship of the parties. They point out that the referee based his decision on the item of good will on the sole ground that the arrangement between the parties was not a partnership. Plaintiffs argue that we decided when the appeal was here before that it was a partnership. (See Potts v. Lux, 161 Kan. 217, 166 P. 2d 694.) We did not go quite that far. We held the petition stated facts that gave Potts a right to an accounting. When the case was finally tried the referee found on substantial testimony that there was no partnership but a contract of employment with profit sharing features. We find nothing wrong with this conclusion.
Plaintiffs next argue that the trial court erred in admitting the testimony of McKnaught, Listz and Lux as to conversations with Potts. Their point is that this testimony was incompetent because it was of a transaction with a deceased person. In their answers these defendants disclaimed any interest in the outcome of the action. Plaintiffs maintain that these disclaimers were in reality only qualified disclaimers and that McKnaught, Listz and Lux were actually testifying in their own behalf. In the first place, the referee found that since there was a question as to the admissability of the testimony of Lux the findings were not based on his testimony. As to the testimony of McKnaught and Lux, the only qualification of their disclaimer was that they were not forfeiting any right they had under their contract with Lux. That would not affect the interests of Potts. Potts pleaded that they had a share in the contract. Actually they testified against their own interests. In Collins v. Hayden, 104 Kan. 351, 179 Pac. 308, we said:
“In a doubtful ease this court inclines to an interpretation of a statute that will admit, rather than reject evidence. (Williams v. Campbell, 84 Kan. 46, 50, 51, 113 Pac. 800; Sarbach v. Sarbach, 86 Kan. 894, 896, 122 Pac. 1052.) In view of the ambiguity noted, we cannot attribute to the legislature a purpose to exclude the testimony of a witness in the class of cases referred to, whenever a decision in favor of the party calling him would inure to his own benefit. It follows that the evidence was rightly admitted.”
(See, also, Bungard v. White, 132 Kan. 349, 295 Pac. 684.)
Plaintiffs next point out that the referee placed the burden of proof on them and argue that this was error. They argue that since defendants had agreed to share profits with Potts, defendants had the duty of keeping accurate accounts and this carried with it the burden of proof. They argue the rule is in point here because all the books and records of the company were in their possession. All the books and records of the company were available to plaintiffs. We find no matter upon which they failed to prove because they did not have the books and records.
The judgment of the trial court is as to the appeal affirmed, and as to the cross-appeal is affirmed.
Harvey, C. J., and Price, J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
This is a workmen’s compensation case. The commis sioner denied recovery. On appeal to the district court this ruling was affirmed and claimant has appealed.
The question before us is whether an injury sustained by an employee in an affray with a fellow employee is compensable under the workmen’s compensation act.
Claimant and one H were employees of respondent packing company. Claimant’s duties were to carry quarters of beef from a loading dock to a refrigerator car. As he would unhook the beef from a rail inside the dock it was H’s duty to remove-the hook from the beef so as to enable claimant to walk off with it toward the car. On the day in question claimant picked up a quarter of beef in the usual way but H did not remove the hook as he was supposed to do. Claimant yelled at him to take it out and the latter made some sort of reply, the nature of which is not shown by the evidence, whereupon claimant “turned and let the hind roll off of his shoulder and threw it back into this fellow’s (H’s) leg.” Claimant then stepped back three or four steps. H grabbed a car hook, made of steel and about eighteen inches long, jumped down from the platform, raised the hook above his head with both hands and struck claimant on the head. The blow knocked claimant down between the building and a railroad car where he lay unconscious until removed to a hospital. As the result of the blow it was necessary to remove one of claimant’s eyes.' Claimant testified that H didn’t have any reason to hit him; that he didn’t know why H did it; that he and H had been friends “and is a friend of his now in a way.” The plant foreman was a witness to the incidents leading up to the actual blow and he testified that H had worked at the plant for several months; was a good worker; had never been in any other fights; that he and claimant had gotten along fine together and that both men were mild-mannered and not fighting men.
A portion of the examiner’s findings is:
“The evidence failing to show affirmatively that the employer had reason to anticipate injury would result if these two men continued to work together, our courts have held that such injury does not arise out of and in the course of the employment.”
and his conclusion was:
“. . . that claimant did not meet with personal injury by accident arising out of and in the course of the employment with respondent; and that award of compensation should be denied.”
On appeal to the district court the case was heard on the transcript of the evidence taken before the examiner and the court adopted the findings and conclusion of the examiner and denied recovery — hence this appeal.
Did claimant sustain a “personal injury by accident arising out of and in the course of employment” within the meaning of the workmen’s compensation act? (G. S. 1935, 44-501.)
In his application for compensation claimant refers to the incident as an “accident,” but in this court he states the question thusly:
“In an application for compensation by a workman who was assaulted by a fellow-employee in the course of his employment, did the Commissioner and trial court err in finding that the claimant did not meet with personal injury by accident arising out of and in course of the employment.”
But even though this concession on the part of claimant were not made we would be compelled to hold that the lower court’s findings that the injury was sustained as a result of an assault by a fellow employee and that it did not affirmatively appear the employer had reason to anticipate injury would result if claimant and H continued to work together, are supported by substantial, competent evidence and therefore will not be disturbed on appeal. (Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P. 2d 89.)
Claimant’s argument is based on the proposition that he and H were friends; had had no previous trouble or quarrels; that the assault could be traced to no other cause than an act in the performance of their employment, and that he was assaulted because he was an employee doing his employer’s work. He cites numerous authorities from other jurisdictions to the effect that in a situation such as we have here it can be said there is a causal relation between the employment and the assault where a rational mind is able to trace the injury to a cause set in motion by the nature of the employment or some condition, obligation or incident in connection therewith. He concedes, however, that “the Kansas cases seem to hold that injuries from assault by one employee upon another are not compensable,” but contends that the Kansas rule has no foundation in logic or the statute.
Be that as it may, many cases of this type have been before this court, and in a long line of decisions it has been held that an employee cannot recover under the workmen’s compensation act for an injury inflicted in an assault upon him by another employee unless the employer had reason to anticipate that injury would result if the two continued to work together.
In Peavy v. Contracting Co., 112 Kan. 637, 211 Pac. 1113, 29 A. L. R. 435, after a review of our earlier decisions, it was held that an employee intentionally injured by another employee cannot recover under the workmen’s compensation act unless the wrongful conduct has become habitual and the habit is known to the employer.
In the recent case of Addington v. Hall, 160 Kan. 268, 160 P. 2d 649, involving the death of an employee as the result of an affray with a fellow employee, the authorities were reviewed and it was held:
“Following Peavy v. Contracting Co., 112 Kan. 637, 211 Pac. 1113, it is held that unless it affirmatively appears from the record that an employer had reason to anticipate injury would result if two workmen continued to work together, injuries suffered by one workman in an affray with the other which result in death are not conmensable under provisions of workmen’s compensation act.”
and in the court’s opinion it was said:
“. . . Many decisions are also cited from other jurisdictions. They, too, have been examined, and while it must be conceded some of them are authority for the proposition that assaults are compensable if an altercation resulting in injury took place during the course of the employment, irrespective of whether it arose out of employment, they are based on other statutes and not in harmony with our decisions.”
It therefore follows that the ruling of the lower court was correct and its judgment is affirmed. | [
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OPINION OF REHEARING
The opinion of the court was delivered by
Parker, C. J.:
This is a rehearing. The original opinion was filed June 12, 1965. (See Finn, Administratrix v. Veatch, 195 Kan. 13, 403 P. 2d 189.)
A rehearing was granted, limited to the all-decisive question of whether the record disclosed valid service of summons upon appellant Veatch.
The foregoing question, while it was raised in the original hearing, was not covered in our initial opinion. Hence, it becomes our duty to correct our error in failing to do so. That, it may be stated, can only be accomplished by supplementing the statement of facts set forth in the original opinion. Such facts, which if they are not actually conceded are certainly not disputed, may be stated thus:
Following the filing of the amended petition on June 6, 1963, in the Sedgwick County district court a summons was issued on the same date by the clerk directed to the sheriff of Sedgwick County, which was in some undisclosed fashion delivered to the sheriff of Crawford County and served upon Veatch by a deputy sheriff of that county. The summons was returned by the sheriff of Crawford County to the cleric of the district court of Sedgwick County with a return showing that it had been served by that official’s deputy. The record makes it appear that no further attempt was ever made to obtain service of summons on Veatch in the instant case.
On July 8, 1963, the answer day specified in the foregoing summons, Veatch, through his attorneys, filed a special appearance and motion to quash service in the district court of Sedgwick County which was overruled by the district court of that county on September 9, 1963. Later Veatch’s attorneys filed a motion to strike the amended petition from the files of the court which was overruled on November 18, 1963. Still later his counsel filed a demurrer to appellee’s amended petition based on grounds such pleading did not state a cause of action in favor of the plaintiff and against Veatch and that plaintiff’s purported cause of action was barred by the provisions of G. S. 1949, 60-306, Third. This demurrer was also overruled. Thereupon Veatch perfected his appeal to this court from each of the three heretofore mentioned rulings.
Under facts and circumstances so similar to those involved in the case at bar they are not distinguishable this court in Branner v. Chapman, 11 Kan. (2nd Ed.) *118, held:
“Where a summons is issued in a suit commenced in one county, and directed to the sheriff of such county, but sent to the sheriff of another county, it cannot be served by a deputy-sheriff of such other county, who has no authority to serve the same except merely such authority as he may have by virtue of being such deputy-sheriff.” (Syl. ¶ 1.)
And in the opinion said:
“This action was commenced in the district court of Coffey county by Benjamin Branner, as plaintiff, against C. B. Chapman and Allen Crocker, county clerk of Coffey county, as defendants. A summons was issued by the clerk of said court, and directed to the sheriff of said Coffey county. The summons was served on Chapman alone, and it was served on him by a deputy-sheriff of Lyon county. No service of any summons was made on Crocker, and the deputy-sheriff of Lyon county had no authority to serve said summons on Chapman, except such authority as he might have by virtue of being said deputy-sheriff. The defendant Chapman, by his counsel, made a special appearance in the action, and moved the court below to dismiss the action for want of jurisdiction. The court sustained the motion, and dismissed the action. The plaintiff now brings the case to this court, and asks that the order of the district court dismissing said action shall be reversed. We do not perceive any error in the ruling of the court below. The service of the summons was certainly irregular, if not illegal and void. A sheriff of Lyon county has no legal right, merely by virtue of being such sheriff, to serve a summons directed to the sheriff of Coffey county, and the deputy-sheriff of Lyon county has no greater power in this respect than the sheriff of said county himself has. The summons must always (if served in the state) be served by the officer to whom it is directed, or by his deputy, or by some person duly authorized by such officers to serve it, (Gen. St. p. 278, § 106; Code, §§ 63, 66), and it cannot legally be served by any other person. Therefore, whenever a summons is directed to one officer and is served by another, as in this case, we think the service should be set aside; and this is the proper practice. In the present case the parties gave the court no alternative but to hold the service bad and dismiss the action, or to hold it good and allow further proceedings to be had, and judgment to be entered upon it. And as the service was unquestionably bad, and as this was the only service in the case, we think the court did not err in dismissing the action. A special appearance to contest the jurisdiction of the court does not give the court jurisdiction.
“The order and judgment of the court below must be affirmed.” (*pp. 120, 121.) (Emphasis supplied.)
For another decision of like import see Home Owners Loan Corp. v. Clogston, 154 Kan. 257, 118 P. 2d 568, where it is held:
“It is the general rule that the sheriff of one county has no authority to serve a summons which is directed to the sheriff of another county.” (Syl. ¶ 1.)
And said:
“. . . It may be stated as a general rule that the sheriff of any county has no authority to serve process not directed to him. (Branner v. Chapman, 11 Kan. 118; 21 R. C. L. 1266; 61 C. J. 470; Merchants Credit Service v. Choteau County Bank [Mont.], 114 P. 2d 1074.) . . .” (p.259.)
That the foregoing decisions are in full accord with legislative intent and mandate is fully demonstrated by applicable provisions of our statute.
See G. S. 1949, 60-2506, which reads:
“The summons shall be served by the officer to whom it is directed, who shall endorse on the original writ the time and manner of service. . . .”
See, also, G. S. 1949, 60-2513 which reads:
“The officer to whom the summons is directed must return the same within the time therein stated.”
From what has been heretofore stated and held we have no difficulty in concluding that the trial court should have sustained appellants motion to quash made on special appearance.
In an attempt to forestall the consequences of the conclusion just announced appellee argues Veatch waived his right to appeal by filing a motion to strike and a demurrer to the amended petition. The ruling on the demurrer to the amended petition was the first appealable order appearing in the lawsuit. We cannot agree with appellee’s position. See First National Bank of Topeka v. United Telephone Ass’n, 187 Kan. 29, 353 P. 2d 963, where it is held:
“Although an independent appeal does not lie from an order overruling a motion to quash service of summons, such an order is reviewable under the provisions of G. S. 1959 Supp., 60-3314a, notwithstanding the fact the order was made more than two months before an appeal therefrom is taken, provided an appeal by the aggrieved party is timely perfected from a judgment or some other appealable order. (Standard Steel Works v. Crutcher-Rolfs-Cummings, Inc., 176 Kan. 121, 269 P. 2d 402.)” (Syl. ¶ 2.)
And in the opinion said:
“. . . Since United had no right to appeal from the order overruling the motion to quash the service of summons at the time of such ruling, it did not waive the question by proceeding on the answer, (citing case).” (p. 33.)
For just a few of the many other decisions of like import see Standard Steel Works v. Crutcher-Rolfs-Cummings, Inc., 176 Kan. 121, 269 P. 2d 402; Voelker v. Broadview Hotel Co., 148 Kan. 326, 81 P. 2d 36, and Vann v. Railway Co., 103 Kan. 857, 176 Pac. 652.
In view of the conclusions previously announced it is neither necessary nor required that we here pass upon the trial court’s rulings on appellant’s motion to strike the amended petition from the files or his demurrer to that pleading.
What is here concluded leaves the conclusions reached in the original opinion, as it now appears in Finn, Administratrix v. Veatch, reported in 195 Kan. 13, 403 P. 2d 189, without any force and effect.
The judgment is reversed with instructions to sustain the motion to quash. | [
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The opinion of the court was delivered by
HobtoN, C. J.:
It is claimed that the court should have sustained the objection of plaintiff to the introduction of the testimony of defendants, for the reason that the answer of defendants did not state facts sufficient to constitute any defense. This court decided, when the case was here before, (29 Kas. 476,) that the defendants were entitled to prove the whole' of the transactions had in connection with the machine and the notes; and therefore, in admitting the testimony of plaintiff, it acted in obedience to the direction of this court. Of' course, in this there was no error.
It is next claimed that the court should have suppressed the deposition of one N. Shomber, which was taken on Peb- ruary 28, 1881, before James H. Harkless, a notary public of Barton county, in the state of Missouri. The objection urged to the deposition is, that it was taken while the action was pending before the justice of the peace; but the caption thereof recites that it was taken in an action pending in the district court. At most, the error complained of is merely a clerical one, and could not have prejudiced the plaintiff; but the objection now presented comes too late. The motion to suppress the ‘deposition filed in the district court embraced several grounds, but did not contain the one now relied upon.
It is further claimed that the district court erred in admitting the oral evidence offered by the defendants to prove that Best and Shomber were the agents of plaintiff. It is unnecessary to comment upon this complaint, further than to quote the following, which appears in the case-made: “The plaintiff here, for the purposes of this ¿rial, admits that Best and Shom-ber were the agents of plaintiff.”
It is also insisted that the court should have sustained the demurrer of plaintiff to the evidence of defendants; this upon the ground that no warranty in law was proved, or attempted to be proved; further, that the warranty does not extend to or cover defects known at the time the warranty was made, unless specifically mentioned. Even if the law be as plaintiff alleges, there was sufficient evidence in the case to go to the jury to show that the agents of plaintiff warranted the machine to be in good condition, and capable of doing good work, but that in fact it was defective, and would not do good work; further, that'the defects in the machine were not fully known to or understood by the defendants at the time the warranty was made.
It is also contended that the court erred in refusing to admit the evidence offered by plaintiff to prove what it would have cost to put in the machine a new lower tension complete. The court committed error in the rejection of this evidence. One of the findings of the jury was to the effect that the defect in the machine was “ in the tension, or parts connected with the tension.” Generally speaking, where personal property is sold which is not of the kind represented and warranted, the measure of dainages is the difference between the contract-price and the value of the article delivered. In other words, the liability of the vendor is limited to the difference between the value of the article actually delivered and that of the article which the parties intended to purchase and contracted for. (Weybrich v. Harris, 31 Kas. 92.) There was no direct or positive evidence offered upon the trial as to the value of the machine actually delivered, and the jury were wholly at sea in ascertaining the amount of damages. If the evidence rejected had been received, -it would have tended to show that the defect in the machine could have been repaired for a trifling sum, and therefore would have been some evidence tending to show the value of the machine when delivered. The jury found in substance, that the machine, if perfect, would have been worth $75, but as actually delivered it? was worth only $30. If the evidence rejected had been admitted, it is not probable that the jury would have come to any such conclusion. All the evidence offered tending in any way to establish the value of the machine when delivered, ought to have been received and considered by the jury.
Various other errors are alleged, but as a new trial must be had in consequence of the rejection of competent testimony, it seems at this time unnecessary to refer to the other matters submitted in the briefs.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
HobtoN, C. J.:
This was an action brought by Joseph Brown, as administrator, to recover damages for the benefit of the next of kin of William Haas, deceased, who is alleged to have lost his life on November 17,1879, by reason of the negligence of the railroad company while the said William Haas was in the performance of his duties as an employé of the company. On the day named, Haas was a yard switchman in the employ of the company at its car yard near the city of Empo-ria, in this state. He went in between a box car and a flat car upon the railroad, and attempted to make a coupling of the cars; his head was caught between projecting timbers on the flat car and the box car, and so crushed that he immediately died. This is the fourth time the case has been in this court. (Railroad Co. v. Brown, 26 Kas. 443; Brown v. Railroad Co., 29 id. 186; Brown v. Railroad Co., 31 id. 1.) At the last time the case was tried, the jury returned a verdict against the railroad company for $5,000. The railroad company, after the jury returned their verdict and special findings, moved the court for judgment upon the special findings, notwithstanding the general verdict. This motion was overruled, and excepted to. This is the first error complained of.
When the case was here at our July term for 1883, Mr. Justice VALENTINE, in delivering the opinion of the court, referred to the admitted facts in the case, and the facts claimed to have been established by the parties to the litigation; thereon he commented at length, and declared the law applicable to the case. (31 Kas. 9-17.) It is said on the part of the railroad company that the theory of plaintiff’s case has always been 2 the having of an uncovered ditch in the railroad company’s yard, into which Haas stepped while performing his duty, and of which he had no knowledge or opportunity of knowledge.” The claim is now made that the findings of the jury show that this theory has no foundation whatever, and cannot be asserted to sustain the general verdict.
The findings which the company allege show that Haas did not step into the ditch, are the following:
“Q,. Was the step which Haas took which brought him onto the track between the two cars a step into any ditch? A. Not directly.
“Q,. After Haas -stepped in between the cars did he take any step or steps toward the coming box car, and if so, how many? A. Not any.
“ Q,. After Haas stepped in between the two cars, did he take any steps toward the flat oar, and if so, how many? A. Not any.”
We do not think the conclusion contended for by counsel upon these findings is a correct, one. We think, from the general verdict and the evidence introduced in the case, on the part of plaintiff below, it may be fairly assumed that when Haas stooped or crouched under the timbers projecting from the flat car, to make the coupling, he went down into the ditch immediately under the end of one of the cars. When the jury answered, “Not directly,” they did not expressly negative his stepping or slipping into the ditch. The answer, on the other hand, tends to show that while he did not directly step into the ditch, he did so indirectly; that is, that he stepped upon a tie and slipped into the ditch, or stepped upon the surface ground between the ties and slipped into the ditch. That this interpretation should be given to the above findings, is evident from the following additional findings of the jury:
“ Q. If there was any ditch which had anything to do with the accident which resulted in the death of Haas, was such ditch in any way concealed from the view of Haas, at the time he walked down to the east end of the flat car and stopped there waiting for the box car, if he had looked in the direction of it? If the jury answer the last question in the affirmative they may state fully in what manner or by what object or objects, or obstruction, if any, such ditch was concealed so that Haas could not have seen it if he had looked in the direction of it at any time when he was walking down to the end of the flat car, or when he was standing at or by the end of it? A. There were several ditches there, as the evidence shows, but from the fact that the track being new, it made between every tie look alike, and a place that had been two or three inches, deeper could not be easily discovered without careful examination.”
The findings, when read together, will fairly bear the interpretation given, and it is the rule that, where the findings of a jury are fairly susceptible of two interpretations, that one should be given which supports the general verdict, rather than an interpretation which would overthrow and destroy it. (Railway Co. v. Ritz, ante, p. 404.) We perceive no error in the refusal of the court to enter judgment upon the special findings in favor of the railroad company.
It is the further contention, that some of the findings of the jury are without any support in the evidence; that others are contrary to the evidence; and that still others are evasive and inconsistent. After a careful reading of the record, we think that this attack upon the special findings must be sustained. Our examination satisfies us that the jury were more anxious to answer the special findings in such a way as might not interfere with the general verdict than to give full, fair and truthful answers to the particular questions of fact submitted. Under such circumstances, the general verdict cannot stand, although it has been approved by the trial court. (Babcock v. Dieter, 30 Kas. 172; Railway Co. v. Fray, 31 id. 739; Railroad Co. v. Harvey, 31 id. 750; Railroad Co. v. Keeler, 32 id. 163; Railway Co. v. Shannon, ante, p. 446; Railroad Co. v. Weber, Adm’r, ante, p. 543; Railroad Co. v. Wagner, ante, p. 660.)
A few illustrations o'f the unsatisfactory answers given by the jury will suffice:
“ Q,. Plow much a year would William Haas have contributed to his mother’s support, if he had lived until she died? A. On an average, $527.
“Q. The jury may state the facts upon which they base their answer to the last question. A. On the supposition that he would earn on an average $2.25 per day.”
For four years immediately preceding the death of Haas, he contributed to his mother only $209.20 — at the rate of $52.30 per year. At the time of his death he was earning as wages $1.90 per day — not $2.25 per day. Even if the deceased could have earned $2.25 per day, it is extravagant to say, considering all the evidence in the case, that of his yearly earnings he would have contributed $527 to his mother, who had considerable property of her own, leaving him less than $200 per year with which to support himself.
“The enigma of the future of a life is not to be solved by the mere matter of faith and hope, or even by the natural possibilities of accomplishment; but mainly and chiefly by the experiences of the past and of what the life has already been. The law runs little along the lines of sympathy and affection, but rather along the lines of the actual and the probable.” Railroad Co. v. Brown, 26 Kas. 460, 461.)
“Q,. Did not "William Haas voluntarily work in the new yard? A. We don’t know.”
The evidence established that prior to the employment of the deceased in the car yards he was at work for the company as a brakeman at $1.50 per day; that he left-that work to accept employment in the old yard of the company at $1.90 per day, and that he had been at work in the new car yard about eight days prior to his death. It also appears from the findings of the jury that he knew the yard in which he met his death was a new and incomplete yard, continuously undergoing change in the course of its completion; that he knew, at the time of his death, the ground in the yard where he received his injury was wet and muddy, and that the ties upon which the rails were laid on the track were above the surface of the ground. No objection, or protest, or complaint upon his part against working in the new yard appears anywhere in the record. Under these circumstances, it is hardly reasonable to say that the deceased did not voluntarily work in the new yard.
“ Q,. Pi'ior to the death of Haas, during the time he was at work in the new yard, was it not of frequent occurrence for cars loaded with projecting material to be in that yard? A. No evidence that it was.
“ Q,. Piad not "William Haas, prior to the time of his death, coupled and uncoupled cars upon the track upon which he met his death? A. No evidence that he did.”
Upon these matters there is, among other, the following evidence in the record:
Frank J. O’Rourke testified:
“ That he was the yardmaster of the Atchison, Topeka & Santa Fé Railroad Company at Emporia at the time that Haas was killed, and knew him as a switchman in the yard of the company; that Haas’s duty consisted in catching cars, uncoupling cars and coupling the same; that the persons working in the yard, constituting the entire day force, were himself, one Stafford, John P. Cherry, and Haas, the deceased; that usually the crew had an understanding between themselves that one man, whom they called foreman, pulled the pius; that Stafford did this; that Cherry rode the cars, and Haas coupled; that the south track, upon which Plaas was injured, was used at the time for making up the Eureka train once a day; that the Eureka train came in from Eureka in the morning about ten o’clock, and left in the afternoon about four o’clock; that he judged coupling and switching had to be doue upon this track at least once a day during the time that Haas was working there; that as he remembered, the Eureka train had to be made up every day on that track, and that Haas was engaged in coupling cars upon the track while working in the yard and in making up the Eureka train; that he did not call to memory any special car or any special day that cars loaded with projecting material passed through, but that they had cars of that kind at all times liable to come through any day, or not to come through for a month; that it was a common thing to receive cars loaded with projecting material; that they were handled the same as other cars were handled — that is, they were uncoupled and coupled, stopped and started, and switched.”
S. P. Chase testified:
“That since October 5,1883, he has been in the music business ; that prior to that time he was the foreman and car-repairer for the Atchisou, Topeka & Santa F6 Railroad Company at Emporia; that he remembered when the company moved into the new yard at Emporia in the fall of 1879; that the south track, upon which Haas was killed, had been used after the company went into the new yard to make up the Eureka train on; that it was not unusual to receive cars in the yard at that time loaded with projecting material.”
H. B. Morse testified:
“That he knew William Haas in his lifetime, and that he employed him to work in the yard of the Atchison, Topeka & Santa Fé Railroad Company at Emporia; that at the time, the railroad company was building the Eureka branch, the Kansas City & Southern branch, and the McPherson branch; that after the company first moved into the new yard, and up to the time of Haas’s death, it was not unusual to receive cars loaded with projecting material in the yard.”
William Peck testified :
“That he could not remember the exact date that the company moved into the new yard, but could recollect something near it; that at the time it was not an unusual thing to see cars with projecting material, and that it is not an unusual thing to see flat cars loaded with projecting material on any road; that he hauled in his train cars loaded with projecting timbers into the new yard prior to November 17, 1879, and that he hauled them out with his train; that such cars were going out on the works west, where the company was constructing a new track — the McPherson Branch — and were generally A. T. & S. F. Railroad cars.”
C. M. Hatfield testified:
“ That he noticed Haas going over to the south track where the cars were to be coupled; that he was at the place where he was killed in about five minutes after he fell; that it was the usual thing to see cars loaded in the yard with projecting material, prior to that time.”
Orrin Smith testified:
“That in 1879, he was firing a switch engine in the yard of the Atchison, Topeka & Santa Fé Railroad Company .at Emporia; that at the time Haas was killed, he was on an engine used in the new yard of the company; that he was in the new yard about four or five days before Haas’s -death; that the south track, upon which Haas was killed, was used to make up the Eureka train; that he thought the Eureka train was made up every day on that track during the time he worked there, previous to Haas’s death, for three or four days, but that he could not positively swear to that number of days, but could swear that the Eureka train was made up on the track the last two days — the day Haas was killed, and the day before; that the Eureka train was a mixed train —that is, it was made up of freight and passenger cars; that when the Eureka train came in, the cars that went west were switched out, and the baggage car and passenger car were thrown in on the south track.”
On cross-examination, the witness testified as follows:
“ Q,. Have you any recollection of the Eureka train having been made up in the south yard prior to Haas’s death, at any time? A. I think it was made up all the time that I was in the yard right there on that track.
“ Q,. Didn’t you swear at the trial next prior to the last one, that you had no recollection of that train having been made up on that track, except on the night before Haas was killed —the evening before Haas was killed? A. I shouldn’t wonder if I did; that is what I say now.
“ Q,. Then the only time you have any recollection of that train being made up on that track before Haas was killed was the evening before that, was it not? A. It is; if I swore to it before, it is so.”
If the jury had said that there was evidence upon these matters before them, but that the evidence was not worthy of belief, or that the witnesses were mistaken, we could at least say that they made intelligent answers; but the answers they did make are evasive.
Again, the following are among several of the inconsistent findings:
“ Q,. Did not Haas know that the standing car with projecting material was loaded with materials which projected over the east end of it, when he attempted to make the coupling? A. Don’t know.
“Q. Did not William Haas stoop or bend his body to avoid the projecting timbers at the time he attempted to couple the cars, at the time of his death? A. Yes.”
It is true that there was a mass of questions presented— one hundred and ten — and if we could conclude from the answers that the jury gave intelligent and impartial attention to the testimony aud questions submitted, we would not hesitate to overrule the challenges to the answers; but as so many important and material questions have been improperly, evasively and unsatisfactorily answered, we think it appears therefrom that the'jury either misconceived the import of portions of the testimony, or else did not. make fair and impartial answers to the questions, and therefore that there has been a mistrial in the case, or a failure of justice. As to the practice controlling the submission of particular questions of fact to a jury, and the construction to be given to the answers thereto, when considered in connection with the general verdict of the jury, we refer to the cases already cited, and also to the following: Bank v. Peak, 8 Kas. 660; City of Wyandotte v. White, 13 id. 191; Railway Co. v. Holley, 30 id. 465.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Fronton, J.:
This appeal stems from an order overruling a motion filed by the appellant, under K. S. A. 60-1507, to vacate and set aside a sentence previously imposed against him. In this opinion, the appellant will be referred to as petitioner.
The parties have entered into an “agreed statement on appeal” whioh, so far as material, shows that the petitioner was charged with stealing a Chevrolet sedan, was arrested on that charge, and was committed to jail; that a preliminary hearing was had at which the petitioner did not have counsel but where both he and his wife testified in his behalf; that petitioner was bound over to district court, where counsel was appointed for him on May 24, 1955; that on September 23,1955, petitioner was formally arraigned in district court, was placed on trial for the offense charged against him, and was represented throughout the trial by appointed counsel; and that all witnesses requested by the petitioner testified either for the state or the defense.
The agreed statement further shows that upon approval of the verdict by the trial court, the state (appellee herein) gave notice in writing that on September 27, 1955, it would introduce evidence and would request the court to sentence petitioner as an habitual criminal; that the petitioner thereupon conferred with his attorney and announced that he desired to waive such notice and to have sentence pronounced forthwith; that evidence of one previous con viction was thereupon introduced and the court sentenced the petitioner to the Kansas State Penitentiary for not less than fifteen (15) nor more than thirty (30) years; and that on February 27, 1958, the Governor of Kansas commuted the sentence to five (5) to thirty (30) years.
It is further agreed that no motion for a new trial was filed and that the record does not disclose, except as recited above, what advice or consultation, if any, was had between petitioner and court-appointed counsel concerning a motion for new trial, the habitual criminal statutes, or other matters.
Before proceeding to consider the several substantive points raised by petitioner on this appeal, we are obliged to give heed to a matter disclosed when this case was presented on oral argument. Upon inquiry by this court at that time, it was discovered, and was conceded by counsel, that the petitioner is now serving unexpired sentences imposed in another case in addition to the sentence challenged here. This information has posed the question whether this proceeding can be maintained by petitioner at the present time. It is our opinion that this query demands a negative response.
K. S. A. 60-1507 (a) provides as follows:
“A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.” (Emphasis supplied.)
To implement K. S. A. 60-1507, as well as for the purpose of establishing the procedures to be followed in invoking its provisions, this court on October 16, 1964, adopted Rule No. 121 set out in 194 Kan. xxvn. Section (c) of the rule provides in relevant part:
“(1) The provisions of section 60-1507 may be invoked only by one in custody claiming the right to be released, (2) a prisoner has no right to an adjudication of a motion challenging the validity of a sentence where notwithstanding an adjudication of invalidity of the sentence challenged he would still be confined under another sentence. . . .”
The foregoing language is plain and explicit. We believe it requires neither clarification nor interpretation. The express terms of the rule precludes the petitioner from maintaining this action at this time. No matter what our conclusion might be on the merits of the contentions advanced by petitioner in his motion, he would not be released from prison, for he still would be confined under other sentences whose validity is not involved in this case.
However, it has been suggested that Rule 121 should not be applied here because it was adopted after the instant action was filed. We find no merit in this claim, for we believe the rule is but declarative of the law which long has been applicable to actions of this character.
In our judgment, it was the intention of the legislature when it enacted K. S. A. 60-1507 that proceedings brought thereunder should be coextensive with habeas corpus proceedings. In his admirable work, Kansas Code of Civil Procedure, annotated, Judge Gard, on pages 706 and 707, says of the statute:
“. . . It is in fact a form of habeas corpus relief required to be brought in the court which originally had, and, under this section continues to have, jurisdiction over the defendant. The limits of the remedy provided here by motion are the same as upon a writ of habeas corpus in another court.”
The foregoing view is implemented by Rule 121 (a), which reads:
“Section 60-1507 is intended to provide in a sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in district courts in whose jurisdiction the prisoner was confined. . . .”
We have heretofore expressly held that a question of law will not be determined in an action of habeas corpus unless a favorable decision thereon will result in the prisoner’s release from custody. (Martin v. Amrine, 156 Kan. 384, 133 P. 2d 582; Current v. Amrine, 156 Kan. 388, 133 P. 2d 584.)
This principle is not solely of local origin. In 25 Am. Jur., Habeas Corpus, § 15, page 153, it is couched in the following language:
“As in the case of an appeal or a writ of error, a writ of habeas corpus will not be granted to determine a mere abstract or moot question. The writ is available only where the release of the prisoner will follow as a result of a decision in his favor. It will be denied where it is apparent that the only result, if the writ were issued, would be the remanding of the petitioner to custody. . . .”
The text continues in § 66, page 192, as follows:
“A prisoner lawfully in custody on a conviction on one count of an indictment, whose sentence thereunder has not been served, is not entitled to a writ of habeas corpus on the ground that his conviction under another count was invalid, although, except for the existence of such conviction, he would be eligible to apply for parole.”
We find the rule firmly rooted in federal procedure as well. A situation somewhat analogous to the one now before us was under consideration in McNally v. Hill, Warden, 293 U. S. 131, 79 L. Ed. 238, 55 S. Ct. 24. In that case, the petitioner had been convicted on three separate counts of auto theft charged in one indictment. An action of habeas corpus was brought attacking the third count alone, and the court held:
“The writ of habeas corpus may not be used in the federal courts as a means of securing the judicial decision of a question which, even if determined in the prisoner’s favor, could not result in his immedate (sic) release.” (Syl. 14.)
To similar effect see Holiday v. Johnston, 313 U. S. 342, 85 L. Ed. 1392, 61 S. Ct. 1015.
In view of what we have heretofore said, we conclude that this action was improvidently brought and should be dismissed. We affirm the judgment of the lower court denying the petitioner’s motion and remand this case with directions to dismiss the same. | [
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The opinion of the court was delivered by
HortoN, C. J.:
This case, with the matters growing out of it, has already demanded much time and attention of this court. (25 Kas. 13; 25 id. 19; 28 id. 315; 29 id. 679.) At the May Term, 1881, of the trial court, Kirkpatrick, plaintiff below, had judgment for $7,500 and costs against Meixell, defendant below. That judgment was reversed solely on the ground that the instruction of the court, as to the measure of damages, was misleading, and that the value of the bonds in controversy as returned by the jury was excessive. (Meixell v. Kirkpatrick, 29 Kas. 679.) In the opinion rendered at that time, Mr. Justice Brewer, speaking for the court, said:
“We do not doubt that a municipal bond so far resembles an ordinary chose in action that, where no evidence of value is offered, its face value is to be deemed the market value, and to this extent the instruction of the court is beyond criticism; but we think that it must be also conceded that such securities have become so abundant, and so much received as an article of ordinary commerce, that they possess, strictly speaking, a market value; and when such market value is shown, that is to be deemed as the measure of damages for any conversion.”
In view of the results attending the former trials of this case, and the several decisions of this court upon the questions at issue between the parties, we would have supposed upon a retrial of the case that the market value of the bonds would have been fully established by the defendant Meixell; or at least that he would have introduced all the evidence obtainable by him on the subject of their market value. We are more than surprised, however, when, from an examination of the record, we find that a large number of depositions had been taken by the defendant showing the market value of the bonds to be from fifteen to forty cents on the dollar flat, and that no effort was made to introduce these depositions as a part of the defense. Until the plaintiff below was permitted to give evidence in rebuttal, these depositions of market value were not offered. Objection was then made by the plaintiff below, because they were proposed to be read after the defendant had closed his defense, and also for other reasons. The court sustained the objection. The apology now given for the non-introduction of the' depositions, showing the market value of the bonds by Meixell in making out his defense, is that no evidence of value was given by or in behalf of Kirkpatrick, in making his case; therefore that Meixell felt justified in resting the value of the bonds upon the proof of three sales, viz.: 1st. All the bonds and coupons from Matthewson to Meixell, on June 30,1877, for $3,100; 2d. Half of the bonds and coupons from Meixell to Matthewson, on July 2,1877, for $1,550; 3d. One over-due $50 coupon from Hawk to Hudson, in June, 1877, or May, 1879, for $20.
This apology is insufficient, when we consider that the important question which ought to have been contested in the trial court, was the value of the bonds; that in the absence of any evidence of value, their face value must be considered the market value; that the sales from Matthewson to Meixell, and from Meixell to Matthewson, were not sales in the ordinary course of business; that Meixell purchased — if there was any sale to him from Forsyth — after notice that Forsyth had sold the bonds to plaintiff below; that Matthewson had the same notice; that the circumstances of the transaction look very much like collusion between Forsyth, Matthewson and Meixell to deprive Kirkpatrick of the bonds by a colorable sale; and that the single sale of one over-due coupon of $50 only would not establish a market value for the bonds.
Again, the contract-price of the-bonds between Kirkpatrick and Forsyth furnishes no fair criterion of the market value, as at that time it was not generally known that the supreme court of the United States had declared them valid obligations, and therefore in the market the bonds were then under a cloud. After Meixell hád rested his case and Kirkpatrick had given evidence in rebuttal, the former was not entitled, as a matter of right, to introduce his evidence showing the market value of the bonds. It is contended, however, that the court abused its discretion in not permitting this evidence to be received after Kirkpatrick came back to the stand and testified that in his interview with Meixell on July 1, 1877, he informed him. that the bonds were worth one hundred cents on the dollar. Not so. This evidence was offered only as impeaching testimony; (Kelsey v. Layne, 28 Kas. 218;) and the court expressly instructed the jury that it was introduced for the purpose of impeaching Meixell, and was “not to be considered by them as evidence of the market value of the property in controversy.” Moreover, Meixell was permitted to testify after Kirkpatrick had been recalled, that the latter did not say to him on July 1, 1877, or at any other time, that the bonds were worth one hundred cents on the dollar.
Counsel complain severely of the charge of the court, relating to the market value of the bonds, as being erroneous. These alleged errors are threefold: 1 st. That the jury were not distinctly directed to ascertain the value of the bonds and coupons at the time of conversion, and therefore that they were permitted to fix the value thereof at the time of trial; 2d. That the court should have directed the jury that there was evidence before them of the value of the bonds and coupons, other than their face value; and that it was the further duty of the court to say to the jury they should be governed entirely by the market value, and give no attention to the par or face value; 3d. That the court gave paramount importance to the face value of the bonds in its directions to the jury, and did not comply with the rule as to damages declared in Meixell v. Kirkpatrick, 29 Kas. 679.
These objections are without force. The court said to the .jury =
“Where evidence has been been introduced showing the market value at the time of conversion, such market value governs; but where no evidence of value is introduced, then the face value is to be deemed the market value.”
Again, the court said to the jury:
“You should ascertain the value of the bonds at the time of conversion by the following rule: Prima faeie the value is the amount due on them, both principal and interest; you should, however, in ascertaining their value, consider any and all evidence, if any has been introduced, which tends to diminish their value, and make your estimate accordingly. Having fixed the value at the time of conversion by the above rule, you should deduct therefrom $3,100, being the contract-price, and the $500 paid Kirkpatrick for the assignment of the judgment against Matthewson, making $3,600 in all to be deducted; and upon the remainder you should compute interest at the rate of seven per cent, per annum from the date of the conversion, and add such interest to such remainder. The sum found by such computation will be the value of the bonds to be inserted in your verdict, in case you find for the plaintiff.”
Further, the special findings show that the jury valued the bonds at the time, of the conversion at $9,475. Therefore it is clear that the jury understood they were to find the value of the bonds at the time of the first unlawful detention, and that they fixed their value as of that date. The jury were expressly informed that—
“ Evidence of the price for which the bonds in controversy, or like bonds and coupons, were sold, was some evidence of their market value at the time of such sales, and that where such evidence was given, they should take it into consideration for what it was worth in estimating the market value of the bonds.”
As the sales proved were anomalous ones rather than sales-made in the ordinary course of business, the court would have clearly erred if it had directed the jury that they “were to be governed entirely by the sales, and were to give no attention to the par value or face value of the bonds.” Market value signifies a price established by public sales, or sales in the way of ordinary business. (Murray v. Stanton, 99 Mass. 345.) The instruction upon the measure of damages was in substantial compliance with the law declared by this court in Meixell v. Kirkpatrick, supra, and while the trial court did refer to the face value of the bonds, it further stated, “that it was only in the absence of any testimony as to the value that the jury were to take the face value of the bonds in controversy as their market value.” In the instruction containing the words-“which tends to diminish their value,” we understand that, the court meant “which tends to diminish their face value.”’ As thus read, it is not subject to the criticism made against it. Had the defendant below introduced to the jury the evidence in his possession of the market value of the bonds at Lawrence,, St. Louis, and other places, there would have been stronger evidence of the market value of the bonds than any offered before the trial.court; but as no evidence of market value was-offered, excepting the sales already commented upon, it is not strange, although unfortunate to Meixell, that the jury were-largely controlled by the face value of the bonds.
It is charged that the court erred in giving judgment for Kirkpatrick against Meixell, for the reason that the special findings of the jury were inconsistent with the general verdict in showing that Meixell did not detain the bonds. True, the jury did find that Matthewson did not sell the bonds to Meixell; that Meixell did not give his check for the bonds that subsequently Meixell did not sell any of the bonds to-Matthewson; and that Matthewson had the actual possession of the bonds at the time Kirkpatrick made a demand therefor. If these Avere the only findings of the jury, it might be said with truth that the special findings were in conflict with the general verdict, but other findings of the jury do away Avith the seeming inconsistency. Thus, the jury found that—
“ From all the circumstances of the case, the transfer of the bonds and coupons by Matthewson to Meixell on June 30, 1877, and the transfer of a half-interest thereof back from Meixell to Matthewson on July 2, 1877, was a fraudulent scheme entered into by them to defraud Kirkpatrick of the benefit of his purchase, and to. appropriate the bonds and coupons to their oavu use.”
Again, the jury found that Meixell .“had such control of the bonds and coupons when Kirkpatrick demanded them, and when this action was commenced, that he could have caused their delivery if he had been pleased so to do.” Under these latter findings and the allegations of the answer that Meixell claimed the bonds as his own, the trial court was justified in rendering judgment against Meixell upon the general verdict, even if he had not purchased them from Forsyth or Matthew-son. If he was in an arrangement to defraud Kirkpatrick and wrongfully deprive him of the possession of the bonds, and such bonds were under his control, the custody of them by Matthewson was also the possession of Meixell. Meixell in his answer insisted that he had purchased the bonds, paid for them, and that Kirkpatrick did.not own them. (Shoemaker v. Simpson, 16 Kas. 43; Hall v. Draper, 20 id. 137; Smith v. Schulenberg, 34 Wis. 50.)
This brings us to the complaint that all the special findings above referred to were erroneous as being unsupported by the evidence. ■ We do not think so. There is much in the record, outside of the amendments incorporated at the request of Kirkpatrick, tending to show that the purchase by Meixell Avas collusive rather than actual.
■We have not thought it necessary to comment at length upon the alleged errors of the court in permitting Kirkpatrick to testify to a transaction 'had personally with Forsyth; in ad mitting in evidence a bill of sale of the bonds in controversy, purporting to have been executed by Forsyth to Kirkpatrick on June 15, 1877; and in refusing to permit Meixell to introduce in evidence a written notice to Matthewson, purporting to have been executed by Forsyth on June 14,1877, notifying him that he had given Kirkpatrick the refusal of the bonds for $3,100, to be paid any time before July 1, 1877, for the reasons that under the allegations of the answer, Meixell admitted that on June 15, 1877, Forsyth was the owner of the bonds in controversy, and that upon that date Kirkpatrick and Forsyth entered into an agreement whereby Kirkpatrick was to have the refusal of the bonds for $3,100, to be paid before July 1, 1877, and as the memorandum in the answer shows that Kirkpatrick performed his part of the contract when he offered to pay to Matthewson on June 30, 1877, the contract-price. Owing to the allegations of the answer, it was only necessary for Kirkpatrick to prove that Meixell had notice of the contract existing between him and Forsyth prior to his offer to perform his part thereof on June 30,1877; that Meixell’s purchase, or pretended purchase of the bonds, was prior to his demand; that he tendered to Matthewson before July 1, 1877, the amount called for in the written notice set forth in the answer, and the value of the bonds at the time he made a demand therefor.
There has been very much drawn into the record which is wholly unnecessary, considering the pleadings, and many matters which otherwise would be material, if Meixell had relied wholly upon a general denial, are no longer matters of substance. Some of the ei’rors alleged are mere irregularities which did not and do not prejudice the rights of the complaining party. It is well settled that “ whatever is admitted in a special defense operates so far as a modification of a general denial.” (Wiley v. Keokuk, 6 Kas. 94; Butler v. Kaulback, 8 id. 668.)
Counsel for Meixell denominate the judgment “a highhanded robbery in the name and form of law,” and allege that the case-made, owing to the insertion of cei’tain amendments over their objection, does not fully present to this court “the wrongs actually done” upon the trial. As the amendments are so presented that we have before us the case as originally prepared, as well as the case after it was settled, we have taken particular care to read the original case prior to the allowance of the amendments. Therefore we are in the condition to say, apart from a consideration of the amendments allowed, that there is not much in the case, as prepared, calling for sympathy for Meixell.
These facts clearly appear from the record as originally made by the counsel now complaining of its mutilation: That on June 15,1877, J. L. Forsyth was the owner of the bonds in controversy; that on that day, Kirkpatrick entered into a contract with him for the refusal of these bonds for $3,100, to be paid before July 1,1877; that Matthewson, the president of the First National Bank of Parsons, in this state, had the control of the bonds; that on June 30, 1877, Kirkpatrick tendered to Matthewson $3,100; that Matthewson said the money was all right; that the tender was good, but that he had sold the bonds to another man, in obedience to instructions from Forsyth; that the excuse for selling them to Meixell? and not keeping them for Kirkpatrick, was, that Kirkpatrick did not tender the $3,100 — the contract-price — before the close of banking hours of said June 30; that neither of the contracts offered in evidence required that Kirkpatrick should make the tender of the contract-price during banking hours; that Meixell, then a director of the Parsons Savings Bank, on June 17 or 18,1877, was informed by its president, Matthew-son, or by its teller, Hawk, of the contract between Forsyth and Kirkpatrick concerning the bonds; that Meixell,-on June 30,1877, went to the Parsons Savings Bank, and about 4 o’clock of that day made some arrangements with Matthewson by which ho was to have the bonds, or some interest therein; that Matthewson testified that Meixell took the bonds for $3,100, and gave the bank his check in payment therefor; that Mat-thewson also testified that he sold the bonds to Meixell as an officer of the bank, and afterward. bought one-half of them back as an individual, and paid $1,550 for them-to Meixell; that on June 30, 1877, or July 1, 1877, Kirkpatrick called upon Meixell and told him that he wanted the bonds, and would pay for them; that Kirkpatrick was willing to give the townships which had issued the bonds the benefit of his purchase, and so told Meixell; that Meixell refused to turn over any of the bonds to Kirkpatrick; that Kirkpatrick testified that Matthewson “urged Meixell to turn over the bonds to-him,” saying “he would give him back his money;” that Scudder testified that Meixell answered Kirkpatrick, “that he had bought the bonds, and if there was anything in them, he wanted to make it;” that soon afterward, Kirkpatrick commenced this action to recover the bonds, or their value; that Meixell has vigorously resisted the claim of Kirkpatrick ever-since his demand.
Upon these facts, the right to the bonds, or their value, is clearly with Kirkpatrick; in fact, Meixell should have returned the bonds to Kirkpatrick when they were demanded. Meixell was a purchaser — if he made any purchase — with notice of Kirkpatrick’s rights, and therefore, after Kirkpatrick tendered the contract-price to Matthewson, Meixell was not entitled to claim or detain the bonds. We deem it a misfortune to Meixell that the market value of the bonds was not fully established by him in making his defense; but for this Kirkpatrick is not responsible. The record does not disclose that Meixell has parted with all of the bonds. He may, therefore, deliver the bonds and coupons in his possession in satisfaction of the judgment pro tanto, and if he is unable to return all, he will be liable only for the remainder of the judgment, if any remains.
We perceive no error on the part of the court in refusing the application of Meixell to withdraw the answer and file a new or amended answer. This application has been twice-presented before to the court for consideration, and no exceptions seem to have been taken upon such prior presentations. The motion was renewed a third time without leave. (Adams v. Lockwood, 30 Kas. 373.)
We have examined all the other questions presented in the briefs, but do not think it necessary to refer specially to them.
The judgment of the trial court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
VALENTINE, J.:
This was a,n action brought in the district court of Linn county, by William Applegate against Elizabeth H. Douthitt, to set aside a deed of conveyance, and to quiet his title to certain real estate. The deed was executed for the land in controversy by the plaintiff to the defendant on August 14, 1882, and the plaintiff alleges in his petition that it was procured by the defendant through fraud. The facts constituting the alleged fraud are in substance and in brief as follows: The defendant, being a designing and crafty woman, induced the plaintiff, by ardent professions of love and affection, to visit her at her home in Bourbon county. He became very much enamored of her, and visited her frequently. She, designing to defraud him of his property, falsely represented that she was wealthy, falsely professed great love and affection for him, and promised to marry him. She asked him to deed his prop-perty to her in order to stop the opposition, as she stated, of her children to their marriage, and promised to deed the land to Fannie C. Shoe, when they were married, and that he should not be poorer for the same, but should be richer. The plaintiff believed that she was sincere in all her professions of love and affection, and in all her promises, and relied upon the same, and he deeded the land to her for no other consideration ■ but in fact she was not sincere, and never had any intention of marrying him or of performing any of her promises, and afterward refused to marry him and to perform her other promises. He also had much personal property, which he disposed of, and then gave her the proceeds.
The defendant answered to this petition, denying all the allegations of the plaintiff’s petition charging fraud against her, and set up that she procured the title to the land in controversy from the plaintiff in good faith and for a valuable consideration. The action was tried before the court without a jury, and the court made special findings of fact and conclusions of law, and rendered judgment thereon in favor of the plaintiff and against the defendant, and the defendant, as plaintiff in error, now seeks a reversal of such judgment.
The plaintiff in error, defendant below, claims that no cause of action was either alleged or proved against her in the court below. On the trial of the case in the court below, she objected to the introduction of any evidence under the petition,, on the ground that the petition did not state facts sufficient to constitute a cause of action; and after the plaintiff had introduced all his evidence and rested, she demurred to the evidence upon the ground that the evidence did not prove any cause of' action; and after all the evidence was introduced, and after the court had made its findings of fact and conclusions of law, and rendered its judgment, the defendant moved to' set aside the same and for a new trial, upon the ground that the findings, decision and judgment were not sustained by sufficient, evidence, and were contrary to law. The plaintiff in error, defendant below, also raises some other questions in this court, all of which we shall consider in their order.
"We think the petition of the plaintiff below states facts, sufficient to constitute a cause of action. "We have already given the substance of the petition, but the facts are stated therein in much greater detail, and more elaborately than we have given them, and there are also other facts stated therein which we have not given. Judge Story says:
“Where the party intentionally or by design misrepresents a material fact, or produces a false impression in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage of him, in every such case there is a positive fraud in the truest sense of the terms. There is an evil act with an evil intent; dolum malum ad ciroumveniendum. And the misrepresentation may be as well by deeds or acts, as by words;, by artifices to mislead, as well as by positive assertions.” (1 Story’s Eq. Jur., §192.)
Mr. Perry says:
“Whenever by misrepresentation, combination, conspiracy, oppression, intimidation, surprise, or any other practice at va riance with honest, fair dealing, one is deceived, entrapped or surprised into a conveyance of the legal title to his property, courts of equity will not allow the fraudulent grantee to avail himself of the transaction to enjoy the beneficial interest, but will construe him to be a trustee, and will order him to account upon equitable principles, and to make a reconveyance of the property.” (1 Perry on Trusts, §171.)
But the specific objection made to the petition by the plaintiff in error, defendant below, is that it shows that the plaintiff below executed the deed with the understanding that the defendant was afterward to transfer the title to Fannie C. Shoe. It is claimed that if the property was transferred to the defendant, in trust for Fannie C. Shoe, the plaintiff can have no further interest in the property, and therefore that he cannot maintain an action with reference thereto. We think, however, that the understanding of the parties that the defendant was to convey the property to Fannie C. Shoe can make no difference. If the plaintiff was induced to part with his property through the fraud of the defendant, by false jDromises, elusive hopes, and deluding expectations, held out by her to him, that his condition, financial, social, and otherwise, would be bettered and improved thereby, it makes but little difference whether it was understood by the parties that the property should ever be reconveyed to him, or not. The fraud vitiates the whole transaction, and the parties should be placed back as near to their original condition as possible.
The principal objection to the plaintiff’s evidence, is that it showed that during a large portion of the time while the plaintiff and the defendant were negotiating with each other with respect to the land, the marriage, etc., the plaintiff was a married man, and therefore all their arrangements or understandings with regard to marriage, or founded thereon, were illegal and void. And it is further claimed that no competent evidence was introduced tending to show that the plaintiff was ever divorced. Now these questions were not raised by the pleadings; and there is nothing in the record indicating that these exact questions were raised at any time in the court be low. In all probability they were not raised in .that court before the judgment was rendered, even if they were then raised; for the entire defense upon which the defendant relied was that she was a bona fide purchaser of the property; hence these questions must now be looked upon with great disfavor.
It is true that at the time Avhen the plaintiff and the defendant commenced negotiations with each other the plaintiff was a married man; but this appeared for the first time upon the trial, and only by the evidence; and it also appeared by the evidence that prior to the conclusion of their negotiations the plaintiff had obtained a divorce. His divorce was granted on August 2, 1882, while the deed to the property was not executed until August 14, 1882; but it is claimed that the evidence showing that the plaintiff had obtained a divorce was incompetent — that it was merely parol testimony. This is also true; but there was no objection to the introduction of such testimony. The case was apparently tried upon the theory that the divorce of the plaintiff was an admitted fact. The plaintiff testified to it orally, without objection; the defendant testified to it orally, without objection; her daughter, Mrs. Abrams, testified to it orally, without objection; and the witness Burnett, and perhaps still other witnesses, testified to it orally, without objection. It really seems to have been an admitted fact in the case.
It is said in the brief of the plaintiff below, defendant in error, that the divorce had been granted by the same court that tried this case; and this, perhaps, furnishes the explanation why no contest was made with reference thereto. If any objection had been made to such parol evidence, the records of the divorce case could easily and immediately have been produced. We think the objection to the evidence with regard to the divorce comes too late. It should have been made when the evidence was offered to be introduced. As the-divorce was granted twelve days before the deed was executed, and as the deed was executed for the reasons and considerations set forth in the plaintiff’s petition, it was not executed for such an illegal or wrongful consideration as will preclude the plaintiff from obtaining the relief which he now seeks. At the time when the plaintiff executed the deed he had a right to contract with reference to a future marriage. It was not then illegal, or immoral, or against public policy, for him to do so. Hence, no good reason can now be given why the relief asked for by the plaintiff should not be granted. He is not attempting to enforce an illegal contract. Indeed, he is not attempting to enforce any contract. He is not attempting to enforce any illegal or immoral transaction; and, indeed, he is not attempting to enforce any transaption. His desire is not to enforce something, but it is to undo and repudiate something that has already been done. He wishes to undo and repudiate all that was done between himself and the defendant with regard to the land.
But it is claimed that he cannot maintain a suit in equity to undo this transaction, because the same is and was illegal, contra bonos mores, within the maxim Ex turpi causa non oritur actio ; and that he himself was a particeps criminis and in pari delicto. This is not correct; for, as we have before stated, at the time when the deed was executed the plaintiff and the defendant had the right to contract with reference to marriage. The entire transaction might then have been innocent, and in harmony with law, with public policy, and good morals. The defendant acted fraudulently; but the plaintiff, having no knowledge of her fraudulent intentions, Avas, in legal contemplation, innocent. It may be true that he acted foolishly; that he violated some of the rules of propriety, and that his actions were not the most commendable; but, in legal contemplation, he acted innocently, and was simply the innocent victim of a villainous fraud, deliberately planned and artfully executed by the defendant. For the pui-poses of this case, we shall consider that all the transactions had between the plaintiff and the defendant, prior to the time when the plaintiff obtained a divorce, were in violation of good morals and public policy, and were therefore void; but these transactions will not defeat the plaintiff’s right to recover, for he has no need of any aid from them in the prosecution of his action. After the divorce was granted, and upon the theory of the nullity of all the prior transactions, both parties were then free. Each had the power to contract for the future marriage, and neither was bound to marry the other. Each was at liberty to repudiate all that had previously been done, and each was at liberty to enter into new negotiations. The only transactions, then, which we need now to consider, are those had after the divorce was granted; and these are sufficient for the plaintiff to found his cause of action upon.
It is said in the brief of counsel for plaintiff in error, de- • fendant below, that “the test whether a demand connected with an illegal transaction is capable of being enforced by law, is whether the plaintiff requires the aid of the illegal transaction to establish his case;” and the case of Holt v. Green, 73 Pa. St. 198, and same case, 13 Am. Rep. 737, is cited as authority. This we think is a correct statement of the law on the subject; but the plaintiff in this case does not require the aid of any illegal or immoral transaction to establish his case. The foundation for his case need not go further back than to the time when he procured his divorce. Also in this connection, see the case of Stout v. Ennis, 28 Kas. 706. While inadequacy of price is never alone sufficient to establish fraud,, yet it may often be shown along with other evidence as tending to show fraud.
Where the question as to whether a money consideration was paid for a deed, or not, is presented for consideration to the trial court, the business transactions and financial condition of the parties about the time when the deed ~was executed, and when it is claimed the consideration was paid, may sometimes be shown as tending to show whether it was probable that a. money consideration for the deed was paid, or not. There are still other reasons, however, in this case, rendering such evidence competent. We think there was sufficient evidence to sustain all the material findings of the court below. Taking the testimony of the plaintiff alone, there is but little room to question the correctness of the findings, and there was but little evidence tending to impeach his testimony, except that of the defendant; and, taking into consideration the improbability of much that she said, and her bad reputation for truth .and veracity, the court was justified in excluding all her testimony.
Finding no material error in the rulings and 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
VALENTINE, J.:
This was an action brought in the district court of Wyandotte county by the city of Wyandotte against Chris. Bernhard, as principal, and J. W. Wahlenmaier, Byron Judd, and Herman Belter, as sureties, on the official bond of Bernhard as the treasurer of said city. The case was referred, by the consent of the parties, to Hon. Nelson Cobb for hearing, who tried the case, and found in favor of the plaintiff and against the defendants in the sum of $6,586.66, for which sum, with costs, the district court rendered judgment. The defendants, as plaintiffs in error, now seek a reversal of such judgment by petition in error in this court.
We shall consider the various points made by counsel. We think the petition in the court below was sufficient. It gave the substance of the bond sued on, and for a cause of' action thereon alleged several breaches thereof. It alleged that Bernhard, by virtue of his office, received large sums of money belonging to the city, which were not used or paid out for the city, and which he failed to pay over to his successor in office, or to account for, and which he converted to his own use. Also, specific sums are mentioned in the petition as not having been accounted for. The breaches of the bond are also alleged in detail, as well as generally. This we think is sufficient. The old forms of pleading are abolished in Kansas, (Civil Code, § 85,) and all that the pleader is now required to do is to state the facts of his case in ordinary and concise language and without repetition, (Civil Code, §§87, 94;) and this was sufficiently done in the present case; and certainly, as no demurrer was filed to the petition, no motion to make it more specific or definite, and as no objection was made to-the introduction of evidence because of any supposed defect in the petition in not stating facts sufficient to constitute a cause of action, the petition must now be held to be sufficient. The first objections made to the petition were placed in the motion for a new trial; but, as before stated, we think the petition is sufficient, and sufficient as setting forth a cause of action on-Bernhard’s official bond. It stated a cause of action independent of the allegations of conversion; and such allegations may be treated as surplusage.
On the trial of the case, the referee, in several instances, did not decide the questions arising upon objections made to evidence at the time when the objections were made, but reserved his decision on such questions until his final decision of the case. This was not error. It is the almost universal practice of courts and referees to try cases in this manner. The practice hastens the trial, and by this means the objections are more intelligently considered and decided. Of course there might be cases where a court or referee would err materially if it did not immediately render its decision upon objections made to evidence; but this is not one of such cases. This is one of that class of cases in which justice could better be done by the referee’s doing as he did. The reserved questions were all decided at the time of the final decision, and the evidence admitted or excluded as the referee thought right under the law and the other evidence introduced, and proper exceptions noted.
It appears in this case that the defendant, Bernhard, served two terms as city treasurer of Wyandotte; that he gave a bond for each term; and that the other defendants, and they only, were his sureties on each of such bond. The present action is on the second bonds. It also appears that the plaintiff introduced evidence for the purpose of showing that a large amount of money belonging to the city was in Bernhard’s hands at the time he gave the second bond. This evidence was objected to on the ground that it was incompetent, for the reason that the action was upon the second bond only. We think the evidence was competent. It was not introduced for the purpose of showing a default or liability on Bernhard’s first bond, but to show the amount of money belonging to the city in Bernhard’s hands at the time when the second bond was given; and certainly Bernhard and his sureties on the second bond are liable for all the moneys belonging to the city in Bernhard’s hands at the time of the execution of the second bond; ’ and as Bern-hard and his sureties on the second bond are the same parties, precisely, that executed the first bond, we think it ought to be presumed against them, at least prima faoie, that Bernhard had in his possession at the time the second bond was given, all the moneys belonging to the city which he at that time, upon an accounting, should have had in his possession as city treasurer. If Bernhard did not have such moneys in his hands at that time, we think it devolved upon him and his sureties who executed both bonds to show it.
On the trial the defendants objected to the introduction of any evidence with reference to any items except certain specific items mentioned in the petition. We think, however, the petition was sufficiently broad to admit all the evidence that was admitted. Besides, it seemed to be necessary, in order to prove that the defendant Bernhard had failed to sufficiently account with respect to the particular items mentioned in the petition, to introduce evidence with respect to all his other transactions with the city. There was no intention, however, to charge the defendants upon any items except those set forth in the petition; and the judgment as finally rendered was with respect to such items only. We think there was no error in admitting the records of the city clerk. They were public records, and entitled to consideration, whether they proved much or little, and whether entitled to great weight or but little.
The principal grounds urged for error in this court, however, are the supposed erroneous findings of the referee with respect to the failure of Bernhard to sufficiently account with regard to two separate items, one for $1,600 and the other for $5,000. Whether the referee ei'red, or not, with respect to these matters, is the only substantial question involved in this case, and it is really a question of fact, and not one of law; and it depends for its solution upon a vast amount of evidence, both oral and documentary, covering Bernhard’s two terms of office as city treasurer, covering a period of nearly four years, and covering a vast number of transactions. It may be that the referee, in making these findings, erred in some unimportant particulars, but we cannot say that he erred with respect to Bernhard’s failure to properly account with regard to these two particular items. We are inclined to think that with reference to these two particular items, and indeed with respect to all material matters, the preponderance of the evidence sustains the findings of the referee. There was at least such an amount of evidence sustaining them that we cannot now, after they have been approved by the trial court, set them aside as not sustained by sufficient evidence. The principal ground of contention with respect to these matters is, whether these two items were included in or covered by certain credits and general receipts given by the city clerk to Bernhard. If they were, it seems to be admitted that the evidence would show that Bernhard had failed to properly account with respect to these items; and we are inclined to think that the preponderance of the evidence tends to show this; but even if these items were not contained in such credits and receipts, still it would seem that about the amount of these two items has never been properly accounted for by Bernhard. Viewing the case in any light, we cannot say that the material portions of the findings of the referee aré unsupported by sufficient ■evidence. As before stated, these findings are made upon both written and oral testimony, and just how much weight the referee gave to any particular portion of the oral testimony, we cannot tell. Possibly the referee did not consider the testimony of Bernhard as entitled to much credit, and if so his decision is now conclusive.
We think a sufficient demand was made upon the defendant, Bernhard, before the commencement of this action. The defendant’s successor in office made a general demand upon him, “to turn over all the moneys, books and papers in his hands belonging to said city,” which demand we think was sufficient. But whether a demand was made, or not, was not one of the issues in this case, and after the persistent contest carried on by the defendants upon other grounds, including the ground that upon an accounting Bernhard did not owe the city anything, we hardly think that they are in a condition to now claim that no sufficient demand was made. And further, a demand would hardly seem to be necessary under the bond. It was Bernhard’s duty to pay over to his successor in office all moneys in his hands belonging to the city, whether any demand was made therefor, or not.
There are a few other points made by counsel, but we do not think that they demand consideration.
Finding no material error in the proceedings of the court below, or of the referee, the judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hakman, C.:
This is an action for wrongful death pursuant to K. S. A. 60-1901, et seq. Appellees are the heirs at law and parents of a twenty year old boy killed as a result of alleged negligence of a fellow employee while working for a common employer. Decedent was subject to the Kansas Workmen’s Compensation Act, under which appellees received death benefits from the employer and its insurance carrier in the sum of $1,640.00. A jury trial resulted in a verdict for appellees for $4,000.00. The sole question involved in the principal appeal is whether the heirs of a deceased employee may maintain a wrongful death action against a negligent co-employee causing the death when the deceased employee was subject to the Kansas Workmen’s Compensation Act.
At common law, fellow employees mutually owed to each other the duty of exercising ordinary care in the performance of their duties and each was liable for a failure in that respect which resulted in injury to a fellow employee. Has this right been abrogated by our workmen’s compensation act?
We recognize that the right to recover for wrongful death did not exist at common law, being one created by statute. For discussion purposes here, however, we may equate actions for wrongful death generally with common law actions for personal injury inasmuch as we have had a wrongful death statute since statehood and the same general principles are applicable.
The precise question here has not been decided by this court, the answer lying upon the interpretation to be given our workmen’s compensation act and particularly K. S. A. 44-504 which provides:
“When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person.
“In the event of recovery from such other person by the injured workman or the dependents or personal representatives of a deceased employee by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien: Provided, That whenever any judgment in any such action, settlement or recovery otherwise shall be recovered by the injured workman, his dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of said compensation or medical aid. Such action against the other party, if prosecuted by the workman, must be instituted within one (1) year from the date of the injury, and if prosecuted by the dependents or personal representatives of a deceased workman, must be instituted within eighteen (18) months from the date of such injury.
“Failure on the part of the injured workman, or the dependents or personal representatives of a deceased workman to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman or the dependents or personal representatives of a deceased workman may have against any other party for such injury or death, and such employer may enforce same in his own name or in the name of the workman, dependents or personal representatives for their benefit as their interest may appear by proper action in any court of competent jurisdiction. The court shall fix attorney fees which shall be paid proportionately by the employer and employee in the amounts determined by the court.”
This statue is the result of various amendments to a provision originally enacted in 1911 (Laws, 1911, ch. 218, § 5) which provided:
“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages in respect thereof: (a) The workman may take proceedings against that person to recover damages and against any person hable to pay compensation under this act for such compensation, but shall not be entitled to recover both damages and compensation; and (b) if the workman has recovered compensation under this act, the person by whom the compensation was paid, or any person who has been called on to indemnify him under the section of this act relating to subcontracting, shall be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the workman to recover damages therefor.”
The 1927 amendment to the same statute (Laws 1927, ch. 232, §4) provided:
“When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damage, the injured workman or his personal representative shall within ninety (90) days of the date of receiving said injury elect whether to take compensation under this act or to pursue his remedy against such other person. Such election must be in writing and must be delivered to the employer in person or by registered mail, and the acceptance of compensation by an injured workman shall be construed as a positive election to accept compensation under this section. Failure on the part of the injured employee or his personal representative to file a written election with the employer within ninety (90) days that he will pursue his remedy against the negligent third party shall operate as an election to accept compensation and as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death, and such employer may enforce in his own name, or the name of the workman, the liability of such other party for their benefit as their interests may appear.”
A 1938 amendment (Laws 1938, ch. 50, § 1) permitted recovery for both damages and workmens compensation. All of the acts provided some form of equitable adjustment between the workman and the employer in case of recovery of damages against a negligent third party, and subsequent amendments have dealt primarily with this subject, that is, subrogation of rights and the extent thereof, resulting in our present statute.
The proviso stating a right in some form to recover damages “under circumstances creating a legal liability against some person other than the employer” has been in our act since its inception. The right existed at common law (and in the case of death, by statute) prior to the enactment of any workmen’s compensation laws. The 1911 act preserved it but expressly denied the right to recover both damages and the newly created workmen’s compensation. The 1927 amendment again stated the common law (and statutory) right to damages but required an election of remedies as between it and the right to workmen’s compensation and further provided that certain action or inaction should be construed to constitute such election. The 1938 and all subsequent amendments have carefully preserved the common law (and statutory) right of damages, permitting its recovery and that of workmen’s compensation at the same time.
From this history we can see there has never been any complete abrogation of previously existent rights against a negligent third party other than an employer. Rather there has been a statutory recognition and preservation of those rights with certain varying abridgments where compensation might also be recovered.
These are rights which may be asserted against “some person other than the employer.” Is a co-employee such a person? Appellant argues he should not be so considered, contending that the whole concept of the act was to place the burden of compensation for accidents to employees upon the employer and that it should not in any instance be placed on an individual co-employee. Appellant frankly concedes in his brief he seeks an interpretation which does not specifically exist in the terminology of the statute.
In our opinion appellant’s contention cannot be sustained. A general rule of construction of statutes is that words in common use are to be given their natural and ordinary meaning (50 Am. Jur., Statutes, § 238; K. S. A. 77-201, Second. The word employer has a definite and precise meaning in common use so well known the legislature did not define it in the compensation act other than to refer to legal entities which the term might include (K. S. A. 44-508 [h]). Resort to the plain language of the statute compels the conclusion the legislature did not mean to include an employee when it used the term employer. Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning the court has no right to look for or impose another meaning. Plain and obvious expressions of legislative intent must control and where it clearly appears we need not search for reasons which may have prompted such intent. As applied to the instant case we feel there should be no departure from the natural meaning of the word used on account of consequences or public policy nor even what the court might deem to be the better policy with respect to employee versus employee suits. These are matters for the legislature.
This conclusion is supported by our prior decisions construing the act. It has been repeatedly stated that the rights and duties under the act are contractual in nature. In Davis v. Reed, 188 Kan. 159, 360 P. 2d 847, it was said:
“The workmen’s compensation act fixes the liability of an employer to his employee where both parties are under the act, and this liability is founded upon the contract of employment and the statute. The liability in no sense depends upon tort. It is a liability growing out of contract, the terms of the statute being embodied in the contract. As between the employer and the employee the remedy provided by the workmen’s compensation act is exclusive. The act does not attempt in any way to determine the rights or liabilities of the employee in respect to a person not his employer. It does not take away from an employee his common law right of action for injury to the person against one, not his employer, who by negligence has caused the injury. (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784; and see, 58 Am. Jur., Workmen’s Compensation, §60, p. 616; and 106 A. L. R. 1040, 1041.)” (p. 163.)
The contract is between the employer and the injured employee. Their general obligations with respect to recovery and liability are expressed in K. S. A. 44-501. The obligation purports only to cover the employer and the employee, each giving up and each receiving certain rights. There is no contractual relationship between an employee and his fellow employee and under no circumstances is the latter liable for compensation. Nor is there any reason why the existence of a contractual relation between an injured employee and his employer should have anything to do with the right of the injured employee to recover from a fellow employee causing the injury, absent legislative expression. We are cited to nothing in the act from which it can be necessarily inferred that the legislature intended to abrogate the common law relationship between co-employees.
In Rumbaugh v. Vonfeldt, 190 Kan. 798, 378 P. 2d 5, this court, in commenting upon the question of whether G. S. 1961 Supp., (now K. S. A.) 44-504 authorized an employer who had already been reimbursed for workmens compensation paid an injured employee to bring a common law third party action for the benefit of the employee during the second year following the injury, had this to say:
“The statute was not intended to destroy any existing rights of the injured employee for the benefit of the wrongdoer.” (p. 805.)
The case of Davison v. Eby Construction Co., 169 Kan. 256, 218 P. 2d 219, bears analogy to the instant case in that the injured employee, after receiving workmen’s compensation, brought a common law action against a negligent third party who was a subcontractor of the workman’s employer on the same job. Much the same argument advanced by appellant here was made in that case. In disposing of it the court said:
“Although there appears to be no case in this state in which an employee of the principal contractor sued the subcontractor for injuries caused by his negligence, such cases have arisen in other states having statutes similar to our own, in which the plaintiff was permitted to recover. [Citations.]
“Indeed, there are a number of cases in which plaintiff has maintained a common-law action for damages against his fellow-employee or his foreman, but we shall not take time to go into those.
“We think tire question presented is governed by the plain language of our statute, which need not be again quoted. If the injury for which damages are sought is caused by someone other than the employer of the workman, the common-law action may be maintained.” (p. 263.)
We note that the immunity for co-employees appellant seeks here by judicial interpretation has been established by specific legislation in a number of states. Varying phraseology is used specifically naming and making immune those in the general category of co-employees. Indeed some such amending statutes have been enacted after courts in those states refused to extend the concept of employer immunity to include co-employees.
In the overwhelming majority of cases arising under statutes similar to ours in other states the courts have held that immunity to common law suit is extended only to the employer and therefore an employee may sue his co-employee for the latter’s negligence. For a partial list see annotations at 19 A. L. R. 793; 67 A. L. R. £76; 106 A. L. R. 1059; see also, Frantz v. McBee Company, (Fla.) 77 So. 2d 796; Vidrine v. Soileau, (La. App.) 38 So. 2d 77; Rehn v. Bingaman, 151 Neb. 196, 36 N. W. 2d 856; Lacaria, Admr., Appellant v. Hetzel, 373 Pa. 309, 96 A. 2d 132; Merchants &. Cas. Co. v. Tuttle, 98 N. H. 349, 101 A. 2d 262; Hagen v. Koerner, 64 N. J. Super, 580, 166 A. 2d 784; Singleton v. Bonnesen, 131 Cal. App. 2d 327, 280 P. 2d 481; Hockett v. Chapman, 69 N. M. 324, 366 P. 2d 850. And in Allman v. Hanley, 302 F. 2d 559 (5th Cir. 1962), it was held that lacking specific wording which would create co-employee immunity, the exclusive-remedy provisions of the Federal Employees’ Compensation Act do not bar a common law action against a co-employee for negligent injuries.
Reasons for the results reached in the foregoing line of cases have been summarized in 2 Larson’s Workmen’s Compensation Law, §72.10, pages 171-172, as follows:
“. . . reference to the plain language of the statute, by the argument that existing rights of action should not' be deemed destroyed in the absence of clear language, by calling upon the moral principle that a tortfeasor should not be relieved of the consequences of his own wrongdoing, and by stressing the danger to workmen themselves of a doctrine that persons engaged in dangerous occupations should be immune from the consequences of their negligence.”
We hold that a co-employee is to be considered as some person other than the employer as contemplated in K. S. A. 44-504, and that the heirs of a deceased employee who was within the workmen’s compensation act may maintain a wrongful death action against a negligent co-employee causing the death.
By way of cross-appeal appellees complain of the trial courts order overruling their motion for new trial on the issue of; damages only because of inadequacy of the verdict and misconduct of appellant’s counsel in his argument to the jury.
The general rule is that inadequacy of damages constitutes a ground for the granting of a new trial when a verdict is so inadequate as to indicate passion and prejudice (Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60).
Also pertinent is the rule that the granting or denial of a motion for new trial is reviewable only to determine whether the trial court abused its discretion in making the order (See cases cited in 1 Hatcher’s Kansas Digest, rev. ed., Appeal & Error, § 458; 2 West’s Kansas Digest, Appeal & Error, § 977 [1]).
Turning first to the question of inadequacy of the verdict, standing alone, the record reveals the following: Decedent, single, twenty years of age, earning about $350.00 per month, lived with his parents at the time of his death and had lived with them most of his life except when he was away at school. Aside from the fact of death and kinship, the record contains nothing more, either evidence or inference, concerning pecuniary loss, or anything at all concerning the decedent or his parents. Upon this state of the record the jury was largely left to its own devices as to the amount of the verdict. We recognize that the loss recoverable is not to be limited to pecuniary loss, some specific elements thereof being as set forth in K. S. A. 60-1904. Due to the intangible nature thereof no definite and precise rule can be applied and the matter of assessment of damages in a case such as this must necessarily be left to the judgment and common experience of the jury, to be guided by the facts and circumstances. That must be the import of the legislative mandate on the subject (K. S. A. 60-1903) which provides:
“In any such action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances. . . .”
Hence we cannot say that the verdict, standing alone, was so inadequate as to indicate passion and prejudice on the part of the jury.
In his argument to the jury appellant’s counsel stated:
“Ladies and Gentlemen, this is probably one of the hardest cases that I have ever had to try. A death case always is. I have great compassion for Mr. and Mrs. Roda and I know them, and yet I am on the other side of the case. Money will not bring the boy back, and I am sorry that he is dead and I am sure you are too. It is a tragic loss; it is an accident that we wish hadn’t happened, but did. One boy is gone, and we can’t bring him back. But, ladies and gentlemen, you have the power in your hands to destroy another life, and that is the life of this defendant. If you award $25,000 damages against this boy, you’re going to bankrupt him; you’re going to destroy his life, his wife, his family’s life. Think about that when you are back there in the jury room. I am not trying to minimize the death of the decedent, not one little bit.”
This argument, not being on the law and the evidence in the case, went beyond the scope of legitimacy, was improper and should not have been made. Appellees argue this must necessarily have contributed to the amount of the verdict. From the cold printed record it is difficult, if not impossible, to assess the impact of improper jury argument in every case. This is best left to the trial judge in the first instance who is in position to take immediate corrective action. Moreover, in this case no objection was made to the argument until upon motion for new trial.
The trial court should, of course, of its own motion without waiting for objection from opposing counsel protect litigants from misconduct of counsel, particularly where the misconduct is so prejudicial that it must influence the jury. If the court fails to act of its own motion, then an objection should be made and a ruling thereon had in order to take advantage of the error in such improper conduct (88 C. J. S., Trial, § 196 b). Such misconduct may be waived by failure to object (88 C. J. S., Trial, § 196 e). This rule has been applied by this court. (Martin v. National Mutual Casualty Co., 169 Kan. 110, 217 P. 2d 1055; State v. Bonomo, 173 Kan. 675, 250 P. 2d 833; State v. Latham & York, 190 Kan. 411, 375 P. 2d 788.)
We have considered the record with these principles in mind. We are unable to say that prejudice resulted or was shown in the amount of the verdict, and in view of the failure to object to the improper remarks of appellant’s counsel when made we think abuse of discretion is not shown. The judgment and orders of the trial court are affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by Thomas S. Christie and Isaac DeGraff, copartners under the firm-name of Christie and DeGraff, against Charles R. Barnes, for the recovery of a steam engine. The action was tried before the court and a jury, and when the plaintiffs had introduced their evidence and rested, the defendant demurred to the evidence upon the ground that it did “not prove the cause of action set forth in the petition.” The court sustained the demurrer, to which ruling the plaintiffs excepted; and, as plaintiffs in error, they now bring the case to this court for review.
The only question now involved in the case is, whether suf ficient evidence was introduced on the trial, from which the jury might have found, in favor of the plaintiffs, all the facts necessary to enable them to recover. On a demurrer to evidence the court cannot weigh conflicting evidence, but can consider only that portion of the evidence which tends to prove the case of the party resisting the demurrer. Indeed, a demurrer to evidence admits every fact and every conclusion which the evidence most favorable to the other party tends to prove. (Bequillard v. Bartlett, 19 Kas. 382; Brown v. A. T. & S. F. Rld. Co. 31 id. 1; Wolf v. Washer, 32 id. 533; Franks v. The State, 1 G. Greene, 541; Stanchfield v. Palmer, 4 id. 23; Jones v. Ireland, 4 Iowa, 63; Coates v. Rld. Co., 18 id. 277; Reed v. Evans, 17 Ohio, 128, 131; Sawyer v. Nichols, 40 Me. 212, 216.)
This really disposes of the case so far as this court is concerned, for from the evidence introduced the jury might have found every essential fact in favor of the plaintiffs. The facts, stated very briefly, are substantially as follows: The plaintiffs’ assignor, F. D. Cummer, sold to the defendant a steam engine, upon certain conditions, afterward to be performed by the parties, the property to belong to the plaintiffs’ assignor until all the conditions to be performed by the defendant were in fact performed. Some of such conditions were never performed, and the plaintiffs claim, and we think proved on the trial, prima facie, that they were not performed because of the fault of the defendant. The defendant, however, claims that the conditions were not performed, because of the fault of the plaintiffs and their assignor. We think it is now useless' to discuss the evidence, or the facts of the case, for at present we know nothing about the defendant’s evidence, and nothing about the facts of the case, except as the evidence of the plaintiffs tends to show them. ,The facts of the case now seem to show a cause of action in favor of the plaintiffs; but when the defendant introduces his evidence the facts may appear to be very different.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hatcher, C:
This is an appeal from an order refusing to strike an ex parte order granting temporary alimony and child support and from an order denying a motion to dismiss a petition for alimony and child support.
The facts are not in dispute. On September 9, 1964, William Cusintz obtained a decree of absolute divorce from plaintiff in Reno, Nevada. She was served with summons in Wyandotte county, Kansas. On September 15, 1964, she filed suit for temporary and permanent alimony and support of the minor child. She obtained an ex parte order for $50.00 per week for the support and maintenance of her and the minor child, together with attorney fees. On October 1, 1964, defendant filed his answer, setting up the unconstitutionality of K. S. A. 60-1611 and on October 13, 1964, filed his motion to strike and motion to dismiss the petition. On October 16, 1964, the court overruled the motion to dismiss and the motion to strike.
The defendant has appealed.
Before considering the issues raised by appeal we must dispose of a jurisdictional question. An interim motion to dismiss the appeal was denied because the court did not feel that the issues before it were sufficiently clarified for such determination. The issues have now been fully briefed and the matter is before us for consideration.
The appellee suggests that the orders from which the appeal is taken are not final and therefore they are not appealable. K. S. A. 60-2102 provides in part:
“(a) As of right. The appellate jurisdiction of the supreme court may be invoked by appeal as a matter of right from: . . . (4) A final decision in any action, . . .”
A final order from which an appeal will lie is one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court. (Connell v. State Highway Commission, 192 Kan. 371, 388 P. 2d 637.) An order overruling a motion to dismiss an action is not a final or appealable order. (Wichita Chamber of Commerce v. State Corporation Commission, 179 Kan. 386, 295 P. 2d 670; Johnston v. Kansas Employment Security Board of Review, 189 Kan. 327, 369 P. 2d 394; Donaldson v. State Highway Commission, 189 Kan. 483, 370 P. 2d 83.)
The appellant does not seriously contend that it is appealing from a final order but rather that the basis for the appeal is the unconstitutionality of K. S. A. 60-1611 which permits a resident of this state to bring an action for alimony and child support where a divorce has been obtained in a foreign state against a resident of this state on constructive service.
An appeal is permitted from “an order . . . involving . . . the constitution of this state . . .” Plowever, the order must have some semblance of finality. The fact that one of the parties raises a constitutional question does not permit an appeal to this court until the trial court has had an opportunity to make a full investigation and determination of the controversy. An order involving a constitutional question or one where the laws of the United States are involved has always been subject to review regardless of the amount in controversy. Griggs v. Hanson, 86 Kan. 632, 121 Pac. 1094; Thomas v. Chicago B. & O. Rld. Co., 127 Kan. 326, 329, 273 Pac. 451; Missouri Pacific Rld. Co. v. Richards, 158 Kan. 178, 146 P. 2d 359.) Such an order is, however, subject to the rule that an order involving the constitutional question must constitute a final determination of the constitutional controversy. Any other conclusion would constitute a usurpation by this court of the original jurisdiction of the district court to determine actions involving constitutional questions.
The appeal is dismissed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Price, J.:
This was an action by a landlord against his tenants to recover possession of real property on account of alleged failure to pay rent.
The landlord will be referred to as plaintiff and the tenants as defendants.
Defendants have appealed from an adverse judgment.
The facts are not in dispute.
For a number of years prior to 1962 defendants, as lessees, had been in possession of three adjoining lots of real estate in Wichita covered by separate long-term written leases. Plaintiff was the lessor therein. Defendants had made valuable improvements on the property. The monthly rental of the three leases totaled $147.50. Prior to August 1962 defendants always paid their monthly rent covering the three leases by one check in the above amount and it always had been accepted by plaintiff.
On July 2,1962, defendants purchased from the Shriner’s Hospital a fourth lease covering a small lot of real estate adjoining the property covered by the other three leases. Plaintiff also was the lessor in this fourth lease. A typewriter shop was located on the property covered by the fourth lease prior to and during the Shriner’s ownership and remained so after defendants purchased the lease. Defendants went into possession of the property covered by this lease. Under its terms the monthly rental was $30.00. Plaintiff was notified that defendants had purchased the fourth lease and, on July 12, 1962, through his attorney, wrote the following letter to defendants:
“Please be advised we represent Fred Dole. He has just received notice from the bank that your company, Kamar, Inc., has purchased the leasehold interest from the Shriner’s Hospitals, 1707 S. Hillside. For your information, there had been negotiations with Mrs. Vanderveen before her death and representatives of the Shriner’s Hospitals since her death respecting cancellation or re-negotiation of the lease for the reason that the typewriter shop located therein is in violation of the lease.
“I am instructed by Mr. Dole to advise you he intends to enforce the terms of the lease completely as to use made of the property. Therefore I would suggest you apprise yourself of the terms of the lease. Please confer with me or Mr. Dole, otherwise action will be taken.”
On July 30, 1962, defendants sent to plaintiff one check in the amount of $177.50, as the August rental due on all four leases.
The check was refused by plaintiff and on August 10, 1962, was returned to defendants with the following letter:
“I am returning herewith your check dated 7/30/62 in amount of $177.50, which has been tendered by you in payment of August rent covering your leases known as the liquor store and used car lot properties.
“The amount of this check is incorrect and I respectfully request that you mail a new check in the correct amount of $147.50 by return mail.”
Similar tenders of rent were made by defendants for the months of September and October, 1962, and ever since then defendants have regularly tendered rental payments the first of each month. After litigation was commenced the payments were paid into court each month.
Other than the letter of July 12, 1962, above, no demand was ever made by plaintiff on defendants with respect to the fourth lease and no action was ever commenced by him to cancel that lease.
On September 10, 1962, plaintiff gave a ten-day notice to defendants for cancellation of the first three leases, giving as reason therefor non-payment of rent. This notice was given pursuant to G. S. 1949, 67-507 (now appearing as K. S. A. 58-2507), which reads:
“If a tenant for a period of three months or longer neglect or refuse to pay rent when due, ten days’ notice in writing to quit shall determine the lease, unless such rent be paid before the expiration of said ten days.”
Shortly thereafter plaintiff commenced this action for possession of the property covered by the first three leases. Defendants denied they had failed to pay the rent due under those leases and alleged they had tendered it each month but that plaintiff had refused to accept it.
The matter was heard on stipulations of fact as substantially related above, and at the conclusion of the hearing the court, on February 24, 1964, notified counsel for the parties as follows:
“Plaintiff has shown no reason in law to declare the fourth lease invalid as between him and defendants; therefore, his refusal to accept the rent money has not been legally justified. Judgment must be rendered for the defendants.”
Plaintiff filed a motion for a new trial and a motion for the court to alter and reverse its judgment. Following a hearing, the court, on April 27, 1964, reversed its former ruling and advised counsel for the parties as follows:
“This case was submitted upon stipulations. My original error consisted in not having thoroughly examined the stipulations and exhibits in the first instance.
“The tenants were at fault. They could have saved the three leases by having separated their checks or by offering payment upon receiving notice to vacate. They are in default, and plaintiff’s motion to reverse judgment in his favor must be sustained. The motion for a new trial is overruled.”
Defendants’ motion for a new trial was overruled and they have appealed.
At this point mention should be made of another law suit involving the validity and terms of only the fourth lease. In March 1963 (and while the instant case was pending) Shriner’s Hospital, which was defendants’ assignor of the fourth lease, brought an action in the district court of Sedgwick county against Mr. Dole (plaintiff in the instant case) to quiet title to the premises covered by that lease. In that action, which was tried in another division of the district court, judgment was rendered to the effect that Mr. Dole’s only interest in the lease was to receive the monthly rental and he was barred from disturbing the peaceful possession of Shriner’s Hospital and its assignees. The judgment in that case was rendered subsequent to the judgment in the instant action concerning the first three leases.
The “picture” of just what happened here comes into clear focus.
For a number of years defendants, as tenant-lessees, had paid the monthly rent of $147.50 covering the three leases here in question, to plaintiff landlord-lessor by one check. It always had been ac cepted by him without question. Defendants later became the tenant-lessees under a fourth lease in which plaintiff also was the landlord-lessor. The monthly rent under this lease was $30.00 and so defendants sent their check for $177.50 to plaintiff as rent on all four leases. Plaintiff questioned the use being made of the property covered by the fourth lease and refuse to accept the check, telling defendants to send him a check of $147.50 which would be the proper amount for the other three leases. Apparently the parties “locked horns”—for defendants continued to send their monthly check for $177.50 and plaintiff, instead of cashing it and returning $30.00 to them—refused to accept the checks. He later brought this action for possession of the property covered by the first three leases because of non-payment of rent. The only question, therefore, is whether, under the undisputed facts, defendants were in default of rent on the first three leases.
In support of the trial court’s judgment that defendants were in default of rent on the three leases in question, plaintiff contends that the tender of payment by defendants was at all times “conditional,” and that had he accepted the monthly checks in the amount of $177.50, which included rental on the fourth lease—he thereby would have waived any right to assert any further claim or cause of action against defendants with respect to that lease.
Defendants, on the other hand, contend that the only purpose of the statute, above quoted, is to secure the payment of rent, and, absent such payment, to place the landlord in possession of the premises; that the amount tendered by them each month equaled the whole amount due under the leases covering the property occupied by them; that the position taken by plaintiff as to the fourth lease was merely an attempt on his part to bring about an unjust result with respect to the first three leases, and that in no respect can their repeated monthly tenders of rent be considered as “conditional.”
Although counsel for both parties cite a number of authorities on the general subject of “tender,” none of them is applicable to the unusual circumstances of the situation presented. We are concerned here only with the question whether defendants were in default of rent on the first three leases. The other law suit in which it was ultimately determined that plaintiffs contention with respect to the fourth lease was erroneous is indirectly involved only to the extent that it throws some light on the entire course of dealing of the parties. The question might well be asked—where a landlord refused tender, based on a claim as to one of four leases which was subsequently determined against him, may it be said that he can assert a forfeiture of the other three leases on the basis of nonpayment of rent, where the amount tendered for the three leases is conceded to have been correct?
The equities of the case, and considerations of every-day common justice compel a negative answer to the question. Throughout the entire period defendants “paid their rent” under the first three leases. They were at no time in default and we believe the trial court erred in concluding otherwise.
The judgment is therefore reversed.
Fatzer, J., dissents. | [
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The opinion of the court was delivered by
Allen, J. :
The petitioner is restrained of his liberty by the marshal of the city of Fort Scott under a commitment issued by the police judge, pending a continuance of a prosecution brought against him in the police coúrt for a violation of an ordinance of the city of Fort Scott requiring all male residents between the ages of twenty-one and forty-five to perform two days’ labor of ten hours each on the streets of the city, or pay the sum of three dollars. The validity of the ordinance on which the prosecution is based is attacked. An objection has been made in the interest of other persons in the class subject to a similar tax by the terms of the ordinance on the ground that this proceeding is collusive and not a bona fide controversy between opposing parties. We have reached the conclusion that the objection ought to be disregarded, and the merits of the controversy will be considered.
The principal objections against the validity of the ordinance are these : (1) That subdivision 34 of sec-. tion 11, chapter 18, General Statutes of 1889, which conferred authority on the mayor and council of cities of the first class to levy and collect poll-taxes, was repealed by chapter 64, Laws of 1893 ; (2) that the ordinance is in conflict with chapter 114, Laws of 1891, known as the “eight-hour law,” because it requires persons subject to the tax to work ten hours a day. The legislative authority for passing an ordinance of this kind, if any exists, is contained in the thirty-fourth subdivision of section 11 above referred to, and the power conferred by it is given to all cities of the first class alike. The legislature of 1893 passed an act which reads as follows : †
“An act to repeal subdivision thirty-four (34) of section eleven (11) of article three (3) of the charter of cities of the first class, published in the General Statutes of Kansas of 1889, relating to road districts, and authorizing and compelling persons between the ages of 21 and 45 years to work thereon.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. That subdivision thirty-four (34) of section eleven (11) of article three (3) of the charter of cities of the first class, published in the General Statutes of the state of Kansas of 1889, relating to road districts, and authorizing and compelling persons between the ages of twenty-one and forty-five years to work thereon, or in lieu thereof, to pay the sum of three dollars, be and the same is hereby repealed : Provided, however, that the provisions of this act shall only apply to cities of twenty thousand inhabitants or more.” ^
It will be observed that the purpose of the' act, as expressed in the title, is to repeal subdivision 34, and so much of section 1 as precedes the proviso is an absolute repeal of that subdivision, but the proviso is that the provisions of this act shall only apply to cities of 20,000 inhabitants or more. Fort Scott is a city of the first class but of- less than 20,000 inhabitants: Section 16 of article 2 of the constitution provides : “ No bill sliall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new. act contain thé entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” The title contains no hint of a purpose to amend or change the law as expi'essed in the subdivision under consideration, but merely to repeal. The purpose of the legislature, however, if all parts of the section are to be given effect, clearly was to amend the subdivision so as to leave it in force in its entirety but limit its application to cities of less than 20,000 inhabitants. No purpose to amend the subdivision being expressed, or even hinted at in the title, it cannot be upheld as an amendment.
But it is urged that the title and the main purport of the act being to repeal the subdivision, and the proviso being without the main purpose of the legislature, the act may stand and the proviso fall. We cannot say that the act- would have been passed without the proviso. Continuing the old law in force as to cities of less than 20,000 people was as much a matter of substance and may as well have influenced the action of the legislature in its consideration of the bill, as the repeal of the law so far as larger cities were concerned. The proviso cannot be treated as a mere minor incident disconnected from the body of the section. The whole section must fall together. The section also is amendatory in character and does not comply with that provision of the section of the constitution quoted which requires the new act to contain the section amended. On this question we therefore conclude that subdivision 34 still remains in full force as originally enacted.
Chapter 114, Laws of 1891, provides :
“ That eight hours shall constitute a day’s work for all laborers, workmen, mechanics or other persons now employed, or who may hereafter be employed by or on behalf of the state of Kansas, or by or on behalf of any county, city, township, or other municipality of said state, except in cases of extraordinary emergency which may arise in time of war or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life.” (Gen. Stat. 1897, ch. 73, § 12.)
It is contended on behalf of the respondent that this act has no application to the ordinance under consideration, because subdivision 34 authorizes the council to require the performance of two days’ labor of.ten hours each, and that this provision has not been repealed or amended either in express terms or by necessary implication. It is also said that a person working a poll-tax • under the ordinance is not employed by the city within the meaning of the eight-hour law, but that rhe service required is in the nature of a tax imposed for the purpose of keeping the streets and alleys of the city in repair. It is often a matter ,of great difficulty to determine how far prior enactments may be changed or restricted in their operations by subsequent ones which are not in terms amendatory. It sometimes happens that the legislature has under consideration a special subject which in some particulars is related to many matters concerning which prior enactments are in force. It has never been held that in order to make the subsequent act valid and operative all such prior enactments must be revised and amended so as to conform to the new act. It is only when the legislature in passing the subse quent act has under consideration the subject-matter contained in the former enactment, and is working along the same legislative line, that the subsequent act can fairly be termed amendatory of the prior. When the eight-hour law was passed the legislature had under consideration the general subject of the length of a day’s labor for those engaged on public works at manual labor, without special reference to the purpose or occasion of their employment. The leading idea clearly was to limit the hours of toil of laborers, workmen, mechanics, and other persons in like employments, to eight hours, without reduction of compensation for the day’s services.
The validity of this act is not now attacked but its effect only is discussed. It is impossible to draw a distinction between the cases of one man who works out his own poll-tax and of another employed by the city to work two days for three dollars collected from a . third who chose to pay in money rather than to work out his tax. That the latter laborer would fall strictly within the provisions of the law is clear. He would be a laborer employed on the public streets and paid directly by the city. The eight-hour law being valid, he could not be required to perform more than eight hours of service for a day’s work. Will it be contended that the man who either from necessity or choice works out his own tax must labor ten hours for a day and 'may be forced to do four hours more service to discharge his tax than the man employed by the city to render two days’ service for three dollars? It is said that the statute does not apply to jurors, and the case of The State ex rel. v. Martindale, 47 Kan. 147, 27 Pac. 852, is cited, holding that the law does not apply to employees at the penitentiary who receive annual salaries. Militiamen and other classes of persons in public employment might also be mentioned who do not fall within the reason or the letter of the law, but with these we have no concern. A laborer on the public streets of a city falls as clearly within the letter, the spirit and purpose of the statute as any person we can think of, and it was for the benefit of such that the eight-hour law was enacted. The ordinance under which the petitioner is prosecuted was passed in 1897. It exacts two days’ labor of ten hours each. This is two hours of service more per day than the law authorized. The petitioner refused to comply with this requirement. He was not bound to enter into any controversy with the city officials as to the length of a day’s employment by working eight hours and then refusing to work longer. The city must first conform its requirements to the limits of the law. Not till then may it enforce them.
The ordinance .as passed is invalid and will not uphold the prosecution against the petitioner. He is, therefore, discharged. | [
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The opinion of the court was delivered by
Doster, O. J. :
This was an action of ejectment brought by the plaintiff in error against the defendant in error. To maintain the defense, tax deeds to the land in question, executed to the defendant and good upon their face, but not protected by the statute of limitations, were introduced in evidence. In addition thereto a conveyance to a third person, antedating the claimed title of the plaintiff, was introduced in evidence as a further defense. The record then states all the subsequent proceedings in the following words :
“ Thereupon the plaintiff offered evidence tending to prove (1) that said conveyance was voluntary and fraudulent; (2) that said conveyance was made to secure a debt. Defendanit objected to the evidence for the reason only that there was a defect of parties defendant to the action. The court received the evidence subject to further consideration; and thereupon said plaintiff introduced competent evidence tending to prove that the tax deeds introduced in evidence were invalid. After consideration the court ruled out and excluded all of said evidence offered by the plaintiff tending to prove that said conveyance was voluntary and fraudulent, or that it was actually a mortgage, and declined to pass upon the evidence as to the validity of the defendant’s tax deeds. The rulings, if erroneous, were materially prejudicial to the plaintiff. Thereupon judgment was rendered for defendant, and plaintiff excepted.”
The plaintiff prosecutes error to this court. It would seem from the above quotation that the reason for the rejection of the evidence offered by plaintiff tending to prove that the conveyance to the third person was fraudulent, or was in fact'only a security and not a deed, was the non-joinder of this third person. Probably the only reason for the court’s refusal to pass upon the plaintiff’s evidence of the invalidity of the defendant’s tax deeds was because of the lack of necessity of so doing, in view of the non-joinder of the third person in question. The court was in error in its rulings. An outstanding title in a third person as a rule constitutes a defense to an action of ejectment, but such third person is not a necessary party to the determination of the action, and his non-joinder, therefore, furnishes no ground for an abatement of the suit. In an action to recover real property it is competent to show that an instrument of conveyance relied on to defeat the action was made with an intent to defraud creditors, or that it was made to secure a debt; and this is so, notwithstanding the rights of third parties may be collaterally passed on. (Knox et al. v. McFerran, 4 Colo. 586; Elder v. Schumacher, 18 Colo. 433, 440, 33 Pac. 175; Potter v. Adams, 125 Mo. 118, 28 S. W. 490; Webster v. Bond, 9 Hun, 437; DuPont v. Davis, 35 Wis. 631; Kent v. Agard and others, 24 Wis. 378.)
In the case of DuPont v. Davis, supra, Ryan, C. J., says :
“ Yet the courts never hesitated to give judgment between the parties to ejectment, because the rights of others or their grants or covenants might be collaterally passed upon; and we see no good reason why we should hesitate now, merely because we are judging an equitable instead of legal right. In all such cases, whether arising on legal or equitable defenses, we hold that it is unnecessary that persons whose rights are collaterally affected by the judgment should be parties or bound by the judgment.”
The judgment of the court below is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Doster, O. J.:
This is the second time we have been compelled to review this case. (Railroad Co. v. Willey, 57 Kan. 764, 48 Pac. 25.) The showing of facts is substantially the same in general outline now as' before. However, the question of the negligence of plaintiff below, the defendant in error here, is more sharply - defined by the special interrogatories .and answers -than upon the former' hearing. On that hearing the matter principally discussed was the question of the liability of the railroad company, as matter of law, for maintaining a hedge and growth of trees upon its right of way, whereby obstructions to the sight and. hearing .of its trains existed as to travelers upon the country highway. The case as now presented brings before us the question of the legal duty of defendant in error, under the circumstances ■disclosed by the findings, to stop, as well as to look and listen, before undertaking to cross the railroad-track.
Summarized, the findings of the jury were that the railroad-track ran nearly north and south, and the train which injured the defendant in error was going north. The defendaiit in error was traveling upon the highway which ran east and west. He had been traveling upon one which ran north and south, nearly parallel with the railroad-track, but 250 feet from the railway-crossing he turned to the east. From this point of turning the view of the railroad-track in the direction from which the train was approaching was obstructed by a grove of trees and a hedge running east and west to a point twenty-eight feet from the nearest or west rail of the railroad-track. There -were certain places in this 250 feet line of hedge and trees where the defendant in error could have seen-the approaching train if he had looked, but he did not look. However, as to the existence of places in the hedge through which he could have looked there is a contradictory finding. He could not hear the ap proaching train because of the noise of the wind in the grove of trees, but he was familiar with the cross- ■ ing and all its surroundings, and knew that' a train was liable to pass at any time. The train did not sound the whistle or give any warning of its approach to the crossing. If the defendant in error had stopped his team just before it passed the east end of the hedge, which as before stated extended to a point twenty-eight feet from the nearest railroad rail, and either looked or listened for the approaching train, he could have seen or heard it; however, he did not stop but drove on beyond the end of the hedge and when he -was within twenty-five feet of the nearest rail of the track discovered the approaching train seventy-five feet distant. The team was trotting at the time. Whether it was then too late to check the horses before they entered upon the track we are not informed. There is no special finding on that question, but the negative of it is perhaps implied in the general verdict and we shall so regard it. The record does not contain the evidence, and all matters of fact are shown by the special interrogatories and answers. On the facts thus shown the plaintiff in error contends that judgment should have been pronounced in its favor, for the reason that the defendant in error was guilty of contributory negligence in failing to stop in order better to look and listen for the approaching train before entering upon the railroad-track.
The question of the duty of travelers upon public highways to stop before undertaking to cross railroad-tracks has frequently been considered by this court, but in none of the cases did the facts justify us in holding, as matter of law, that the duty to stop in order to look and listen was incumbent upon the injured person. However, it was not denied in any of them that the court might, on a sufficient showing of facts, determine the legal obligation, but, on the contrary, it was at least infer-entially stated in all of them that cases might arise so clear and. free from doubt in point of fact as to enable the court to resolve the question as one of law. (C. K. & W. Rld. Co. v. Fisher, 49 Kan. 460, 30 Pac. 462; A. T. & S. F. Rld. Co. v. Hague, 54 id. 284, 38 Pac. 257; C. R. I. & P. Rly. Co. v. Williams, 56 id. 333, 43 Pac. 246; C. R. I. & P. Rly. Co. v. Hinds, 56 id. 758, 44 Pac. 993.) Of the cases cited, the one which came the nearest to justifying the application of the rule of legal duty to stop was C. R. I. & P. Rly. Co. v. Hinds, supra. It appeared in that case that the view of the track was obscured by a thick growth of tall sunflowers, and that a high wind was blowing at the time, ’ "ing it difficult to hear the noise of approaching v The locomotive whistle was not sounded or othe^ warning given. Thus far stated, the case is identical in point of fact with this one, but it further appeared that the highway crossing where the accident occurred was a village street 485 feet distant from the railroad depot, and that the train causing the injury was moving backward at the rate of thirty miles an hour. Under these circumstances., it was held that the court did not err in leaving to the jury the question of the injured man’s duty, as a reasonably prudent person, to stop before going upon the crossing, the court remarking in the opinion that “ a reasonable man would hardly expect to meet a train running backward past a depot at so high a rate of speed, where the track was obscured, without any warning of its approach.” However, cases do arise which impose upon the courts the obligation to declare the rule of legal duty resting upon travelers to stop at highway-crossings. Judge Elliott, in Inis recent work on Railroads, section 1167, says :
“Ordinary care often requires that the traveler should stop, look and listen for moving trains, from a place where danger can be discerned and precaution taken to avert it. If, for instance, the noise is so great that an approaching train cannot be heard, or the obstruction such that it cannot be seen, then the traveler must come to a halt and look and listen. It cannot be said that one who simply looks and listens where such acts are fruitless and unavailing exercises that degree of care which the law requires. While it cannot be justly affirmed, as we believe, as matter of law, that there is a duty to stop in all cases, yet there are cases where the failure to stop must be deemed such a breach of duty as will defeat a recovery by the plaintiff. There are very many cases holding that the surroundings may be such as to'impose upon the traveler the duty of stopping, looking, and listening, and these cases, as we think, assert the true doctrine. Some of the courts, in well reasoned cases, press the rule further, and hold that the traveler must, in all cases, stop, look, and listen. As we have said, we do not think that it can justly be affirmed, as a matter of law, that there is a duty to stop'in all cases ; but we do think that the duty exists in cases where there is an obstruction to sight or hearing, and that where the surroundings are such that but one conclusion can be reasonably drawn, and that conclusion is that it is negligence to proceed without halting, the court should without hesitation direct a verdict if no halt is made.”
It is undeniable, therefore, that if in a given case the court could know all the facts as well as the jury knows them, and but a single deduction could be drawn from such facts, the question would become one of law for the court’s determination. (K. P. Rly. Co. v. Pointer, 14 Kan. 38, 53.) It is only when the court does not know all the facts as well as the jury, or, if knowing all of them, different minds might deduce different conclusions, that the question of a traveler’s obligation to stop at a highway-crossing belongs exclusively to the jury. Iiowever, in this case enough of the facts were found and stated by the jury to enable us to know the situation surrounding plaintiff at and preceding the time of the accident as well as they knew it, and knowing the facts as the jury knew them we believe all reasonable minds, if guided by correct legal.rules, would arrive at the same conclusion.
We pass by the fact, as found by the jury in one instance, that there were places in the hedge and grove of trees through which the plaintiff could have seen the approaching train had he looked, and treat the case as though the jury had found, which it did in another instance, that he could not see the approaching train because of the grove of trees and hedge. The pertinent facts, then, are that the plaintiff below could not see the approaching train because of obstructions to his view, nor could he hear it because of the noise of the wind in the grove of trees. He was, however, familiar with the crossing and all its surroundings. He knew that a train was liable to pass at any time. He knew that he could neither see nor hear its approach. He could, however, have seen or heard it if lie had stopped just before his team passed the end of the hedge nearest the track, which point was twenty-eight feet from the nearest rail. He knew that he could not, for the reasons stated, either see or hear an approaching train without stopping at or about the end of the hedge. Under these circumstances the legal proposition of his obligation to stop, in order to assure himself of safety, is unquestionable. The law first laid him under the obligation to look and listen. This is undisputed. The exercise of the senses of sight and hearing were unavailing, and were known by him to be unavailing. The very contingency, then, in which the law laid him under the necessity of further precaution arose.
AYhen this case was before us at the former hearing, I took occasion to remark, as the rule of legal policy in all such actions, that “regard for one’s own personal safety and that of others to whom he may stand in dangerous relations, requires the exercise of diligence and caution ; and the policy of the law should be to impose penalties upon the negligent injurer and likewise to withhold relief from the negligent sufferer.” This I again repeat, and it cannot be too strongly impressed upon the minds of persons traveling over railway-crossings. In this case not only wrns the duty of the plaintiff to stop before going upon the crossing inferable from the facts which we have principally commented on, but the jury trying his case specifically declared as a matter of fact that if he had stopped he could have seen or heard the approaching train, and of course could then have avoided the accident. “ Q. If the plaintiff had stopped the team just before it passed the east end of the hedge just west of the crossing where the accident occurred and either looked or listened for the approaching train from the southwest, could he have seen or heard the train approaching? A. Yes.”
One of the jury’s findings was that the plaintiff knew that a train was liable to pass at any time, and this is interpreted by his counsel to mean knowledge of the passing of a train as a possible occurrence. We do not so view it. Railway trains are liable to pass at any time. They do not always run on schedule time. They frequently run behind time, and occasionally for some special reason run ahead of time, and they often run as extras upon telegraphic orders from station to station without a schedule of time. To say that the plaintiff knew that a train was liable, as a fortuitous circumstance, to pass at any time, is to say nothing possessing any relevancy to the case. What the jury meant was that the plaintiff knew that the train in question was liable to pass the Crossing in question at the time in question, because such was its accustomed time.
The question of the right of the plaintiff in error to judgment upon the specially found facts notwithstanding the general verdict is the only one presented to us for review. That, for the reasons above given, is necessarily determinable in its favor, and the judgment of the court below is therefore reversed, with directions to sustain the defendant’s motion for judgment upon the special findings. | [
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The opinion of the court was delivered by
Johnston, J. :
This is a continuation of the litigation that was before this court in 1895, the main purpose of which is the setting aside of the will of William Judd, deceased, and the partition of real estate owned by him at the time of his death. (Shorten v. Judd, 56 Kan. 43, 42 Pac. 337.) A brief summary of the undisputed facts is that William Judd married Mary Toler on October 10, 1880, and a daughter, Jennie L. Judd, was born to them October 7, 1881. Early in 1882, a separation occurred, which was shortly followed by a decree of divorce, granted because of the fault of the husband, and the divorced wife was awarded alimony in the amount of $1200, which was paid. After the divorce, Jennie lived with her mother, while William Judd lived upon the farm. In January, 188S, he rented the farm to William Runkle, and about April 1, 1888, Sadie Runkle went to the Judd place, where she cooked and kept house for her brother and Judd. She claims that she was married to Judd about that time; but that is one of the matters in dispute. In July, 1886, William Judd made a will in which he devised all his property to the daughter, Jennie L. Judd. On June 11, 1888, he committed suicide, and soon after his death his will was probated and the executor took possession of the property in controversy. In May, 1890, Jennie L. Judd died unmarried, intestate, and without issue, leaving her mother, who had intermarried with Frank Shorten, as her sole and only heir at law. In February, 1889, Sadie Runkle gave birth to a child, which she named John Judd, and he has been generally known by that name in the neighborhood where he resides. In January, 1889, Sadie Runkle was married to Charles Mott.
In behalf of John Judd it is claimed that he is the legitimate child of William Judd and Sadie Runkle, the only issue of a consensual marriage which occurred about April 1, 1888. It is also claimed that the father’s marriage, together with the birth of the child, operated to revoke the will, and that under the law John Judd inherited and was entitled to one-half of the real estate in controversy, his mother having renounced her claim to the property. The disclaimer of the mother made her a competent witness at the second trial, which, like the first, resulted in a finding and judgment in favor of John Judd.
The principal questions to which testimony was directed at the trial were the validity of the marriage which it is claimed was entered into between William Judd and Sadie Runkle, and whether John Judd was the issue of such marriage. A jury was called, to whom two questions were submitted, which, with their answers, are as follows : “Was Sadie Mott, formerly Sadie Runkle, the wife of William Judd at the time of his death? ” A. “Yes.” “ Is the plaintiff, John Judd, the son of William Judd, deceased? ” A. “Yes..” These findings were approved and adopted by the court, and upon the whole case the court found as a matter of law that John Judd was the owner in fee simple of an undivided one-half interest in the real estate in controversy, and that Mary Shorten was the owner in fee- simple of the other undivided one-half of the real estate, and that Sadie Mott, having renounced and relinquished all interest in the real estate in open court, had no interest therein. Judgment was given accordingly.
No attack is made here upon the form of the action nor any question raised as to the right to the relief which is sought, but the parties make a full submission and invoke the decision of the court upon the validity of the alleged marriage, under the testimony, and as to the effect of the marriage and the birth of John Judd upon the will which had previously been made. Several questions about which there was contention relating to the character of relief to which plaintiff is entitled, and as to the competency of testimony, were decided in the first review and require no further consideration.
The objection to the submission of issues of fact to the. jury is not well taken. It may be conceded that neither party was entitled as a matter of right to a jury, but it was competent for the court to take the advice of the jury upon disputed questions of fact. In cases of equitable cognizance it is entirely within the discretion of the court whether any or all the issues of fact shall be submitted to a jury; and even the findings of the jury upon the issues submitted are not conclusive upon the court. It may adopt or reject the findings as the evidence may require, and in the end the court must determine for itself every issue in the case.
It is strongly contended that the evidence did not warrant the finding that William Judd was married to Sadie Runkle, but we are unable to say that there is no testimony to sustain this finding. The twelve jurors whose opinions were taken found that the parties were actually married, and that John Judd is the fruit of that marriage, and upon the testimony the court below reached the same conclusion. No claim is made that there was a formal marriage, but the contention is that the agreement and conduct of the parties were such as to constitute a valid consensual or common-law marriage. Nothing in our statutes prohibits a marriage per verba de prsesenti, or at common law, and so it has been held that where there are no impediments existing a present consent between parties then to take each other as husband and wife, followed by cohabitation, is sufficient to constitute a valid marriage. (The State v. Hughes, 35 Kan. 626, 12 Pac. 28; The State v. Walker, 36 id. 297, 13 Pac. 279; The State v. McFarland, 38 id. 667, 17 Pac. 654.) There -is the testimony of Sadie Runkle that there was a present consent to an immediate marriage, and that they lived together as husband and wife from that time until the death of Judd. There is much in the testimony and many circumstances opposed to this claim, and -which go far to justify the contention of the plaintiff in error that the relation between the parties was wholly meretricious.
If the facts' as written in the record were submitted to the writer he would hesitate long before he would hold that there was an actual marriage, or that the parties themselves understood that they had assumed the marriage relation. Among other things, it would seem that no publicity was given to the alleged marriage ; she never told her parents', relatives or friends that she had been married — not even her sister, who lived, in the Judd house with her a.part of the time. They never introduced or spoke of each other to neighbors or strangers as husband and wife. When she insisted that a marriage ceremony be performed he told her that he could not afford the. expense at that time, and yet he was a man who had abundant means. Then there was the circumstance that they contemplated a formal marriage ceremony, and had arranged that it should occur in July following, and later they fixed the time for June 11, the day on which he killed himself. No claim was made by her at the time of his death, nor at the funeral, that she had been his wife, nor was any public claim of that kind made until more than a year afterward, when this action was brought. She never claimed the name of Judd, or was recognized by any other name than Sadie Runkle, until she was married to Mott. Of course, none of these things is conclusive against the claim of marriage, and ,we recognize the fact that the trial court had a much better opportunity to determine the force of these circumstances and the truth of the statements of witnesses than we have.
In addition to the testimony of Sadie Runkle that they were married and had lived together as husband and wife for about ten weeks, there is the testimony of William Runkle that about the 1st of May, 1888, William Judd told him, in the presence of Sadie, that the marriage had occurred and that they- were living together as husband and wife. Charles Reed, who was an employee of William Judd in the early part of 1888, testified that Judd told him that he was going to be married, and, later, and some time in the month of May, upon inquiry of Reed as to how he was getting along, Judd stated that he was all right — that he had a woman now. Shortly before the death of Judd he applied to a physician for medicine to pro duce an abortion, and he stated that he had got a woman in trouble and wanted to help her out of it. The doctor suggested that he would better marry the woman, and Judd replied that he would have married her but that he did not want the child. Some other circumstances might be mentioned which would slightly tend to support the claim of marriage, but, taking the whole testimony, the court is unable to say that there is no basis or support for the findings and judgment of the court. Inconclusive as the testimony was, two juries have found that there was a marriage, and the court in each instance has approved and adopted the finding. It may be said that the testimony supporting the marriage was stronger on the last trial than on the first one. and viewed in the light of all the circumstances and the rule which controls the decision of a reviewing court on questions of fact, we would not feel justified in setting aside that finding.
This leaves only the question of what is the proper division of the property in controversy. The will, which was made nearly two years before the marriage, made no provision for the wife, or for the child born after his death. The rule of the common law is that the will of an unmarried man which devises the whole or substantially all of his estate is revoked by the testator’s subsequent marriage and the birth of a child, unless provision has been made for the wife and child in the will or by previous settlement. The change of circumstances and condition is such as to raise the presumption that the testator could not have intended that a former disposition of the property should remain in force. By reason of the subsequent marriage and birth of issue, new obligations were created and new moral testamentary duties arose, so that the law will presume a change of purpose which will amount to an implied revocation of the will. (29 A. & E. Encycl. of L. 319; 1 Jarm. Wills, 128.) Itis'notcontended, nor can it be held, that the common-law doctrine referred to is abrogated by the statutory provisions concerning the revocation of wills. The statute provides that certain alterations shall operate as a revocation, and also that if the testator had no children at the time of executing his will but shall afterward have a child living or born alive after his death, the will shall be deemed revoked. It is also provided that a will may be revoked by tearing, canceling, obliterating or destroying the same with the intention of revoking it, or by another will or codicil in writing properly executed. As a restriction upon bequests the statute also provides that no husband or wife can bequeath away more than one-half of his or her property without the consent of the other. (Gen. Stat. 1897, ch. 110, §§ 34-37, Gen. Stat. 1889, ¶ ¶ 7238-7241.) As indicating that the revocations provided for are not deemed to be exclusive of implied revocations, the statute provides : "But nothing herein contained shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.” This provision clearly recognizes implied revocations, and is equivalent to an express enactment that the common-law rule as to implied revocations resulting from a change of condition or circumstances remains in force. Of course the rule can have no force as to such changes or conditions as are expressly provided for in the statute; but as to all others we must assume from the language of the provision quoted that the legislature had in mind the rules of the common law applicable to such cases, and there fore that it was intended that the marriage of a man and the birth of a child would operate to revoke a will previously made. While provision is made for a. posthumous heir where the testator had no child at the time of executing the will, and also for cases where he has children but a child is born after making a will ( §§ 36, 39, supra), no provision is made for cases where a marriage and the birth of a child conjointly occur after the making of the will.
Our conclusion is that the rule of the common law in such cases is not affected by the statutory provisions, and that it operates in this instance to revoke the will of William Judd. The will must therefore be deemed to be without force or validity, and the distribution of the estate must be made in accordance with the rule in cases of intestacy. Sadie, who was the wife, is effectually barred from claiming or takiDg any share in the estate by her disclaimer and renunciation. So far as the distribution of the estate is concerned she has stepped aside, and cannot now or at any future time claim a wife’s or widow’s share. The distribution must be made as though the marriage relation had not existed between herself and William Judd. The children, Jennie L. and John Judd, were, while living, to be treated as the only heirs of the estate, and each was therefore entitled to one-half of the property in controversy. By reason of the death of Jennie L. Judd, the mother, Mary Shorten, inherits her share. The district court made a division upon this basis, awarding one-half to Mary Shorten and the other half to John Judd. Its judgment will therefore be affirmed. | [
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Per Curiam :
Six resident taxpayers of a joint school district petitioned the county superintendents of Atchison and Jefferson counties to detach a strip of territory from two adjoining districts and attach the same to the joint district. The petition was denied by these officers. One of the petitioners undertook to appeal to the state superintendent of public instruction, and that officer, after a hearing, reversed the decision of the county superintendents and directed them to attach the territory to the joint district. As the county superintendent of Jefferson county was about to carry the decision into effect, and the county clerk to place the property so intended to be transferred on the tax-roll and treat the property as a part of the joint district, an action was brought to enjoin them from so doing, alleging that the proceedings for the change of the boundaries were taken without the required notice and were void. The court held the proceedings to be invalid and enjoined the transfer of the territory to the joint district. The case was brought directly to the supreme court, and a motion is made to dismiss it because the record contains no certificate of the judge of the district court that the action is one belonging to the excepted classes, and because there is no showing that the amount in controversy exceeds the sum of $2000, and the record does not even, show that there is $100 in controversy exclusive of interest and costs.
This court is certainly without jurisdiction to determine the matter in controversy, as the amount involved is insufficient. The claim that the rights involved are not susceptible of a valuation in money is not good. It is not the strip of land nor its value that is involved, but it is the taxes to be derived by levy upon the real estate attempted to be transferred. There is no claim that there is a schoolhouse on the strip in question, or that a matter of convenience in reaching a schoolhouse is the right in controversy. Evidently the purpose of adding territory to the joint district is to make it stronger by increasing the taxable property of the district. The other districts are resisting the transfer of the territory because it takes from them a source of revenue and correspondingly weakens them. A monetary valuation may be placed on the rights in controversy, and that is the amount arising from an authorized levy on the real estate for school purposes. It is shown that the aggregate market value of all the real estate in question is |25,000, and any authorized levy of taxes for school purposes would produce an amount far short of the jurisdiction of this court.
Whether there is a sufficient amount involved to give the court of appeals jurisdiction may be properly left to that court to decide. The case will be certified to the court of appeals for the northern department. | [
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The opinion of the court was delivered by
Doster, C. J. :
Susan Grimes died intestate. Her next-of-kin were her children, of whom the plaintiffs in error comprise the greater number. The probate court appointed Norman Barratt administrator of her estate, and he qualified and entered upon the performance of the trust. He was not of the class denominated “next-of-kin.” None of the next-of-kin voluntarily renounced the right to administer the estate of the deceased, nor was any of them cited to appear in the probate court for the purpose of taking or renouncing administration, nor did the probate court make a finding that any of them was incompetent or unsuitable for the discharge of the trust. The plaintiffs in error appeared in the probate court and made a motion to set aside the order appointing Barratt as administrator for the reason that they, as next-of-kin to the deceased, were entitled to administer her estate, and they had not renounced their right nor been cited to appear in court for the purpose of taking or renouncing administration, nor had they been adjudged incompetent or unsuitable for the discharge of the trust, wherefore, as claimed by them, the appointment of Barratt was in violation of section 12, chapter 107, General Statutes of 1897 (Gen. Stat. 1889, ¶ 2796), upon the subject of the administration of decedents’ estates. This motion w-as overruled. The plaintiffs in error appealed to the district court, which court affirmed the rulings and orders of the probate court. From its judgment of affirmance error has been prosecuted to this court.
We need not undertake to determine the correctness of the decisions made by the probate and district courts. No appeal lies from an order of the probate court appointing an administrator of a deceased person’s estate. Section 203, chapter 107, General Statutes of 1897 (Gen. Stat. 1889, ¶ 2974), specifies thirteen different classes of cases in which appeals to the district court shall be allowed from the decisions of the probate court, but an order appointing an administrator is not included in the list. The thirteenth and last class of cases in which by the statute cited appeals are allowed is, “ where there shall be a final decision of any matter arising under the jurisdiction of the probate court, except in cases of habeas corpus and injunction.” Within this class, if within any at all, the case of the plaintiffs in error must be included. It is not, in our judgment, within that class. A portion of the above-cited statute relating to the appointment of administrators reads as follows :
‘ ‘ If the persons so entitled to adminstration are incompetent, or evidently unsuitable for the discharge of the trust, or if they neglect for twenty days after service of said citation without any sufficient cause to take administration of the estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust.”
This statute evidently vests in the probate court large discretion in the selection of administrators. The court is entitled to pass upon the competency and suitability of the next-of-kin to discharge the trust in question. The next-of-kin are entitled to administer the estate upon conditions, and the determination of the existence of those conditions would seem to be wholly with the probate court, if not oppressively and arbitrarily exercised. That discretion has not been made revie wable by the terms of the statute relating to appeals, unless the very general language of the provision above quoted regarding the thirteenth class of appealable cases vests the discretion. It could not have been the intention of the legislature to vest in the probate court a full measure of discretion in the appointment of administrators, and at the same time confer upon dissatisfied and protesting persons a right to appeal from the exercise of such discretion.
It is true the appointment of another than the next-of-kin without the issuance of a citation to such next-of-kin to appear in court and take or renounce administration was irregular ; that is, it was irregular in the contingencies that the next-of-kin lived within the county and any interested person applied to the court for the issuance of a citation. The issuance of a citation is not a positive requirement. It is by section 12, supra, required only in the contingencies mentioned. Whether these contingencies occurred in the case in hand we are not advised, but, assuming that they did occur, it must be observed that the appeal was taken from the order of appointment and not from the neglect of the probate court to issue a citation. It was taken from the discretionary order and not from the neglect of the court to observe the requirement to issue a citation. If appeal in such cases will lie, the neglect of the court to issue the citation might be reviewed; but under the statute, if it lie at all, it lies as well where the citation has been issued as where it has not. If the statute gives a right of appeal it does not give it because the requirement as to the issuance of a citation has been violated, but because the discretion of the court as to the substantive right involved has been abused. So, to determine whether a right of- appeal exists, we need only to look to the statute relating to appeals, and in no wise to those relating to other matters.
The supreme court of Missouri, construing a provision of a statute of that state, in terms the same as the one in this state relating to appeals from probate courts, held that an order appointing an administrator was not appealable, because discretionary with the court. (State, ex rel. Grover, v. Fowler, 108 Mo. 465, 18 S. W. 968.) However, in such matters, as explained by the court in the case cited, an aggrieved person is not wholly without remedy. If the discretion of the probate court has been manifestly abused, mandamus will be allowed to compel it to follow the statutory order of priority in the making of the appointment. While mandamus will not be issued to control discretion, it may nevertheless be issued to compel the performance of a plain statutory duty, where the only excuse for its non-performance merely masquerades in the guise of discretion. In addition to the remedy of mandamus it would seem that error from the judgment of the probate court would lie under section 583, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4640), which reads: “A judgment rendered or final order made by the probate court may be reversed, vacated or modified by the district court.for errors appearing on record.”
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Doster, O. J.:
This is an appeal by William A. Norris from an order of the district court of Saline county revoking liis license to practice as an attorney and counselor at law and removing Mm from tlie said office of attorney and counselor. Upon written representations that Norris had been guilty of a wilful violation of Ms duties as an attorney and counselor, signed by a number of citizens, the court appointed a committee of members of the bar of Saline county to investigate his conduct and report the result of such investigation, and to prepare and file charges against Mm if the result of their investigation should warrant. An investigation was made by the committee and a report filed by it. Accompanying the report, the committee filed a|formal accusation against the attorney, charging him in one count with having, in his capacity as county attorney of Saline county and attorney for the state of Kansas, demanded and received a certain fee or reward for the institution and prosecution of a criminal action before a justice of the peace; and in two other counts with having, as such county attorney and attorney for the state of Kansas, demanded and received fees or rewards for the dismissal of certain criminal prosecutions for the violation of the prohibitory liquor law; and in a fourth count with having dictated and caused to be written and falsely prepared a paper purporting to be a copy of a summons issued out of the district court in a certain civil action in which he was employed as the plaintiff’s attorney, the original of which summons had not been issued out of such court under the hand and seal of the clerk, and with having caused such paper to be served by an officer as a copy of valid process.
Service of this accusation together with a rule to plead thereto was made upon Norris. Upon the rule day he appeared and filed amotion for a change of venue which, was overruled, and after it a motion for a continuance which was also overruled. He then filed a clemurrer to the accusation which was likewise overruled, and following it filed an answer, consisting in part of a denial of the charges made and in part of allegations of matter explanatory of his conduct in respect to the charges, and also in a further particular of matter in the nature of a plea of former trial and acquittal on one of the charges. To the new matter contained in the answer a general denial was filed. The accused thereupon demanded a jury for the trial of the case, which was refused. Proper exceptions to all these adverse rulings were made. A trial was then had to the court, resulting in the order of revocation and removal before mentioned. Motions for new trial and in arrest of judgment were made and overruled and exceptions preserved.
The case comes to us upon a record made up of the originals of all the papers filed in the case, together' with a translation or copy of the stenographer’s notes of testimony upon the hearing of the motions for change of venue and continuance and upon the hearing of the trial proper. None of the testimony has been brought to us either in the form of a case-made or a bill of exceptions. The various papers composing the record are named and described by the clerk of the district court, and are certified by him to be “the original papers in a certain action pending entitled ‘In the matter of William A. Norris, an attorney at law,’ and all the original papers therein, as the same appear on file, . . . and are all the informations, accusations, pleadings, motions, orders, evidence, judgments and proceedings of whatsoever kind or' nature had therein.” Among the papers thus listed by the clerk and certified by him as “original pa pers ” is the stenographer’s transcript of testimony. It is scheduled and named by him “ Evidence taken on trial.”
We are asked to review the evidence with a view to determine its sufficiency to prove the accusations made and to sustain the j udgment of disbarment pronounced, and also to determine from it whether the court erred or abused its discretion in refusing to grant the change of venue and the motion for continuance. Whether the determination of any of these matters involves the consideration of questions of disputed fact is immaterial in the view we have of the disposition to be made of the case. If our attention is challenged merely to controverted matters of fact, we would not be at liberty, under the often enunciated rule, to enter upon their examination. If, however, such is not the case, if the evidence was not conflicting, and if on it no questions other than those of law arise, we are equally powerless to give consideration to it, for the reason that the appellant has not brought it to us in the proper form for review. The statute in relation to the disbarment of attorneys and trials and appeals in such cases as this is chapter 90, General Statutes of 1897. Sections 16 and 18 read as follows :
“ § 16. To the accusation he (the attorney) may plead or demur, and the issues joined thereon shall in all cases be tried by the court, all the evidence being reduced to writing, filed, and preserved.”
“ § 18. In case of a removal or suspension being ordered by the district court an appeal therefrom lies to the supreme court, and all the original papers, together with a transcript of the docket entries, shall thereupon be transferred to the supreme court, to be there considered and finally acted upon. A judgment of acquittal in the district court is final.” (Gen. Stat. 1889, ¶¶ 401, 403.)
The appellant in this case has misinterpreted these two sections. He has 'conceived the evidence, after its reduction to writing and its filing and preservation as required by section 16, to be an “original paper” within the meaning of section 18. It is not an original paper. Evidence taken upon the trial of a case, even when reduced to writing, cannot be classed as a paper in the case, much less as an original paper. By the “papers” are meant those which are the foundation of the action or defense and thosb which attest or exhibit some interlocutory proceeding taken in the case. Evidence taken upon the trial of a case does not become a “paper” in it except when preserved in the form of a case-made or bill of exceptions. It takes a judicial act of the trial judge to determine what has been the testimony in a case. His judgment is manifested by the certification of a case-made or the allowance of a bill of exceptions. There is no other way of identifying matter as testimony or of proving that all of it has been collected. (Bass v. Swingley, 42 Kan. 729, 733, 22 Pac. 714; Elliott, App. Proc., § 798.)
At the close of the stenographer’s transcript of testimony the statement is made that “the above and foregoing was all the testimony taken on the trial of the case.” This fact, if it be such, was certified as true by no one except the clerk, who, in the above-quoted certificate, declares that “ said originals are all the accusations, pleadings, motions, orders, evidence, judgments and proceedings of whatsoever kind or nature.” By what authority the clerk certifies to the correctness or completeness of evidence in a case we cannot conceive. Certainly no statute confers such authority. In the preparation of a case-made or bill of exceptions it is correct practice for counsel prepar ing the record to assert its completeness as to testimony, but in such cases the court in its settlement of the case or the bill judicially' certifies..to the correctness of the statement. (McCoy v. Able, 131 Ind. 417, 30 N. E. 525 and 31 N. E. 453.) In this case there is not even an agreement of counsel to the fulness and completeness of the testimony we are asked to review. Even if the record, looked at as a whole, together with its implications, could be regarded as containing such agreement, or as containing a waiver of informal preparation, it would be ineffectual to enable us to enter upon its consideration. “ Neither the certificate of the clerk of a district court, nor the agreed statement of counsel as to what occurred at a .trial, can be made to supply the place of a bill of exceptions taken in accordance with the statute ; and when matter is sought to be brought into the record by such means it will be disregarded by the supreme court.” (The State v. Bohan, 19 Kan. 28.) The same is true as to a case-made. (Hodgden v. Comm’rs of Ellsworth Co., 10 Kan. 637.)
An appellate court can review the action of an inferior one only upon the record of the proceedings of the lower tribunal certified as correct by some responsible authority. An appellate court must be positively assured as to what transpired in the inferior one before it can enter upon the consideration of the claims of error made. What evidence was offered and either received or rejected, what rulings were made and what exceptions preserved, what interlocutory proceedings were had, must be exhibited in some formal, authentic and indisputable manner. If the proceedings consist of nothing more than the record proper — that is, the pleadings, process, and judgment— they do not need to be made up and settled • they are already made up and settled, and their authenticity is established by the certificate of the clerk as custodian of the records. But if they consist of the transitory events and incidents of the trial, they must be noted and preserved for the purpose of remembering their occurrence and reviewing their correctness. The duty of doing this is the duty of the court, aided by the clerk, stenographer, attorneys, and other officers. The duty of determining and settling these matters and putting them in the form of a memorial of the events of the trial, being thus cast' upon the court, is judicial in its nature. Being judicial it cannot be delegated, As remarked by Chief Justice Elliott, in McCoy v. Able, supra, it is so entirely judicial that even the legislature cannot impose the duty upon any other than a judicial officer. It must be done in the form of a bill of exceptions or a case-made, settled and signed by the judge. These, particularly the first, are the immemorial methods by ydiich matters not composing parts of the record proper are made such and authenticated to appellate tribunals for purposes of review. It is safe to say that any other method, if allowable at all, must be prescribed in clear and unam.bigu.ous language, and not be left to conjecture or doubtful and uncertain construction.
The mistake of the appellant in this case was in conceiving the evidence, which by section 16, supra, is to be “reduced to writing, filed, and preserved,” as being filed and preserved for purposes of review in that form by this court. It needs but short reflection to discern the error of this view. The statute requires the.evidence to be “filed.” Manifestly this means filed in the court in which the proceeding was had. It likewise requires it when filed to be “preserved.” It is equally manifest that this means preserved in the court in which it was filed. It cannot be preserved in that court if it is to be brought to this court for purposes of review, because when brought here it must be filed here, and also preserved here as a part of a record in this court. The purpose of the statute is to preserve the evidence taken upon the trial in the court in which taken for future reference — for vindication of the attorney in case of his acquittal, and for vindication of the court in case of his disbarment.
Upon the point of practice under consideration this case is identical with In re Fleharty, 59 Kan. 776, 53 Pac. 129. However, the statement of facts and the opinion in that .case were quite brief and, perhaps, lacking in clearness. They should have been more amplified in order to a satisfactory understanding of the case, and the law as it was then and is still viewed. As in this case, the record in that one contained no bill of exceptions or case-made, but was made up of what were certified by the clerk to be “ the original papers.” Included among these papers were the stenographer’s transcript of testimony and some documentary evidence which had been identified by witnesses. What was meant by that decision was that such part of the record in an appeal of that character as could only be exhibited to a reviewing court in the form of a bill of exceptions or case-made must be put in that form, and that the clerk’s certificate that the prefixed papers were original papers filed in the cause and not transcripts of records properly made up was not sufficient to bring the case before us for review. What is meant by “original papers” in section 18 of the statute before quoted we did not undertake in the case of Fleharty, and do not now undertake, to determine. It is sufficient for the necessities of both cases to determine that a transcript of evidence introduced upon the trial of a case of this character is not an original paper, and cannot be brought into the record of an appeal except in the way hereinbefore indicated. We are unable, therefore, to review the action of the court below concerning questions arising upon the evidence in the case.
There are therefore withdrawn from our consideration all questions relating to errors predicated upon the testimony in respect to the motions for change of venue and for continuance, and also all questions relating to errors occurring upon the trial, including the question of the sufficiency of the evidence, as a matter of law, to sustain the judgment of disbarment. For the same reason the ruling of the court upon the motion for a new trial cannot be reviewed. There remain therefore for consideration only the rulings upon the demurrer, the refusal of a jury trial, and the denial of the motion for arrest of judgment. The first and last involve the same question and may be considered together. Appellant claims that the derelictions of professional duty charged against him were criminal offenses, and that a prerequisite to the revocation of his license to practice was his trial and conviction by due process of law in the courts. This was not the case. The necessary implications from the statute are to the contrary. Section 13, chapter 90, General Statutes of 1897, reads as follows :
“The following are sufficient causes for such revocation or suspension: (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) for the wilful violation of any of the duties of an attorney or counselor.” (Gen. Stat. 1889, ¶ 398.)
By this section it is seen that convictions of felony or of misdemeanor involving moral turpitude are made sufficient cause for revocation of license to practice. By it the record of such conviction is made sufficient evidence upon which to base an order of disbarment. This statute, however, neither by its language nor by its implications makes a record of conviction of an offense involving moral turpitude the only evidence of an attorney's unworthiness to practice. It simply declares that to be sufficient evidence. It provides differently as to some offenses for which conviction has not occurred. • It specifies certain acts involving moral turpitude, and which constitute felonies by other statutory provisions, as sufficient causes for revocation. One of these is neglect by the attorney, on demand, to pay money in his hands belonging to his client. Another is destroying, mutilating or altering files or records in court proceedings. As to these, therefore, no previous conviction is necessary. Another cause for revocation of license enumerated by this section is “the wilful violation of any of the duties of an attorney or counselor.” As to this, even though the act constituted an offense involving moral turpitude, conviction is not required. For this cause the charges in question were brought against the appellant. A reading of section 13 would seem to show that for offenses committed by an attorney in his character as such attorney his license to practice may be revoked without a previous trial or conviction, even though the offenses constitute indictable crimes ; but for offenses not committed by him in his character as an attorney a conviction must be first obtained, but even in the latter case many courts have held that a conviction was not a prerequisite to proceedings in disbarment. Be this as it may, the charges against the appellant in this case related to him in his professional character and duty strictly. According to one of them he demanded and received a bribe to institute a criminal prosecution. According to two others he demanded and received bribes for the dismissal of criminal prosecutions. According to another he falsified judicial process. Every act charged against him related to his professional conduct as a representative of others or as a prosecutor of suits against others. Every act charged against him related to his actual practice of law, to his pursuit of remedies in court in his capacity of an administrator of justice. By the common law and by the statute quoted, the court, as the authorized censor of the conduct of its officers, was empowered summarily to inquire into his practices in the respects named, and to strike his name from the rolls upon proof of the accusations.
The fact that some of the acts charged against him were acts of official malfeasance committed in his capacity as county attorney can make no difference. He performed them as an attorney at law — as an official of the court as well as an officer of the county. While we have previously held that a county attorney need not be a duly admitted and licensed member of' the bar (The State v. Swan, ante, p. 461, 56 Pac. 750), yet, if he be such, he must, in representing the interests of his quasi-corporate client, be governed by those rules of professional couduct under which justice must needs be administered to public as well as to private litigants.
The demand for a jury trial was rightly refused. By section 16, supra, issues in cases of this kind, are triable by the court. The authorities are all likewise to the effect that in such cases juries are not demand-able as of right. Upon the two questions last discussed we have not taken the trouble to collate decisions or to elaborate in reasoning. The law is well settled — settled with but slight dissent upon the part of the courts or individual judges. A review of the cases and a statement in full of the reasoning upon which they proceed will be found in Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569.
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The opinion of the court was delivered by
Smith, J.:
This action was commenced on March 31, 1891, being a suit in replevin brought by the plaintiffs in error, who were plaintiffs below, against W. B. Swisher, then coroner of Sherman county, to recover possession of a stock of merchandise valued at $5500. The plaintiffs below alleged ownership of the property, their claim to the same being based on a chattel mortgage showing on its face a consideration of $2000, executed by one W. H. Daly to them on March 25, 1891, covering the goods involved in the suit. This mortgage was made subject to two prior mortgages, one held by the Sherman County State Bank and another by William Bowers, for the sums of $6334.86 and $1050 respectively. It is admitted that the two mortgages last mentioned were given without consideration and were fraudulent as against creditors of Daly. In McDonald v. Swisher, 57 Kan. 205, 45 Pac. 593, that fact was held not to invalidate the mortgage now before us. When this suit was commenced the defendant in error, Swisher, as coroner of the county, had levied on the goods in question under three writs of attachment, issued at the instance of creditors of Daly, and was in possession of the property under said writs. Said attaching creditors, standing back of the coroner, are the real parties in interest in this replevin action.
No question is made of the good faith of the mortgage of the plaintiffs in error when originally given. The actual amount due them, however, was $1787.68 on an account for goods sold ; but the court found that the incorporation of the excess arose from want of knowledge of Daly of the exact amount of his indebtedness, and was due to no fraudulent purpose on his part. After the above-mentioned writs of attachment had been levied on the goods, and the same were in the custody of the coroner, the plaintiffs in error through their agent, Rice McDonald, entered into a verbal agreement, afterward and on April 1, 1891, re duced to writing, with M. B. Tomblin, agent of the Sherman County State Bank, and William Bowers, whereby the plaintiffs agreed to bring this replevin action in their own names to recover from Swisher the possession of the goods in suit. It was further stipulated that upon possession being obtained by the plaintiffs under the proceedings in replevin, they would turn the goods over to the bank and Bowers and permit them, without molestation, to foreclose one or both of their said mortgages on the goods so delivered, and, in return for this, the bank and Bowers agreed to sell the replevied goods to the best advantage, and, after deducting expenses of sale, to satisfy first the claim of plaintiffs to the amount of $1700, and afterward apply the balance of the proceeds to the payment of the mortgages held by the bank and Bowers in such manner as might be agreed upon between the parties. As soon as the plaintiffs in error obtained possession of the goods by virtue of the replevin action, the same were turned over to the bank and Bowers, pursuant to the agreement. The value of the goods at the time this action was begun was $5500, and, as found by the court, the plaintiffs in error have realized at least the sum of $3260, receiving the same through M. B. Tomblin, president of the bank, who had control of the deposits arising from the sale of the goods.
The court found that the agreement above mentioned was fraudulently and secretly made between plaintiffs in error and Tomblin and Bowers, not only to obtain possession of the goods for the purpose of applying their value to the satisfaction of their own claim, but also for the purpose of enabling said Sherman County State Bank and William Bowers to use the residue of the moneys arising from the sale of said goods, after plaintiffs were paid, for the payment of the claims of the bank and Bowers ; and that the existence of the said agreement between them came to the knowledge of defendant below about August, 1897. Judgment was rendered for the defendant. The plaintiffs below come here on proceedings in error.
The first complaint is that the trial court erred in refusing to enter judgment for the plaintiffs below on the mandate of this court in the former case sent down July 11, 1896. The argument is that the findings of fact made in the first case were undisturbed by this court, and that upon receipt of the mandate there was nothing to be done, except to enter judgment for the plaintiffs below. The mandate does not so read. It says :
“ Whereas, at the July session of the July term of said supreme court, a. d. 1896, on consideration of the said petition in error, it was ordered and adjudged by the said supreme court that the judgment of the district court be reversed and that the cause be remanded for such further proceedings as are in accord with the views of this court as expressed in its opinion, a certified copy of which is herewith transmitted.”
We cannot agree with the plaintiffs in error in this contention. First, no judgment was ordered by this court to be entered on the findings in the former case. In Cahn v. Tootle, 58 Kan. 260, 48 Pac. 919, it is said : “ If it had been the view of this court that judgment should have been entered without further proceedings, an express direction to that effect would have been embodied in the mandate.” Again, in Crockett v. Gray, 31 Kan. 348, 2 Pac. 810, it is said : “ The practice in this court is to state specifically in the opinion and mandate the judgment or order which is to be entered by the trial court, whenever it is thought a final disposition ought to be made upon the record as it stands; and when simply a reversal is ordered, a new hearing in the trial court is intended.”
Second, it appears that after the receipt of the mandate the cause was docketed for the November term, 1896, in the district court, and was passed .from time to time until the November, 1897, term, being continued over the April and July terms. Before the motion of plaintiffs in error to enter judgment in their favor upon the mandate was made, notices had been served and depositions taken in the cause in Denver, Colorado Springs, Beatrice,, and in Iowa, the two former depositions being taken at the instance of the plaintiffs below. The existence of the written agreement between McDonald & Co. and the bank and Bowers was not discovered by the defendant in error until after the mandate had been sent down to the district court. It will be seen that, by the preparations made for another trial, the plaintiffs in error did not regard their rights under the chattel mortgage to have been fully adjudicated by this court in the first decision of the case, and made no motion for a judgment on the mandate until about sixteen months after it had been sent down to the trial court and after considerable proof had been taken by way of depositions and filed in the case. Evidence was also introduced on the motion, showing the agreement between plaintiffs in error and the bank and Bowers, and that the existence of the same-was not discovered by defendant below until after the receipt of the mandate. This evidence was important.
Direction by this court to the court below ordering a judgment is not conclusive upon the latter if new and different facts are presented in the case. The production, however, of merely cumulative evidence would be insufficient. In this case the discovery of the agreement above mentioned introduced a new feature into the controversy not known or referred to at the former trial, compelling the court to retry the case on a different theory.
In Conroy v. Perry, 26 Kan. 473, this court said:
“ It is true that the mandate issued from this court directed a judgment upon the findings in favor of defendant, but we have heretofore held that such mandate does not compel a mere technical, blind and literal following thereof. It means simply that upon the facts as thus stated, such a judgment ought to be entered, leaving full discretion to the district court to act upon any new facts presented, and to act thereon as justice and equity may require. The idea that because this court upon certain facts has directed the entry of a specific judgment, the district court is therefore concluded from acting upon further facts presented is absurd.”
In Duffitt & Ramsey v. Crozier, Judge, 30 Kan. 150, 1 Pac. 69, the court held :
“The district court, upon being directed by the mandate of the supreme court to enter judgment upon the findings of fact found by the trial court for the defendant below, in a case brought on error to the supreme court, must execute the mandate, unless there shall be presented new and different facts in the case.”
Moreover the record does not contain any of the conclusions of law or fact found by the court below on the former trial. These findings, which are said in the brief to be forty-eight in number, cannot be considered, nor can their legal effect be known to us. (Parkhurst v. National Bank, 55 Kan. 100, 39 Pac. 1027.)
The principal complaint of the plaintiffs in error is that the conclusion of fact No. 17 is not supported by the evidence. It reads :
“That afterwards, and on the 28th day of March, 1891, said Rice McDonald, as agent of these plaintiffs, received notice of such facts and circumstances touche ing the character of the mortgages executed by Daly to the bank and Bowers, as to which, if he had made inquiry as a prudent man, would have led him to a knowledge of the fraudulent character of said mortgages as hereinbefore found. That he failed and neglected to make such inquiry as he should have made as a prudent man.”
The testimony showed that Rice McDonald was the general agent of the plaintiffs in error and that Mr. Ellis, the attorney for the attaching creditors, talked with him before this replevin action was begun and told him that the mortgages of the bank and Bowers were fraudulent and tried to induce him to join in the effort to set aside said mortgages as fraudulent as against creditors. This McDonald refused to do. The evidence further showed that at the time of this conversation the coroner was in possession of the goods under writs of attachment issued against Daly in three separate suits instituted by his creditors, and that Mr. Andrews, the attorney for R. L. McDonald & Co., had the papers in said cases in his office. The petitions in said attachment cases made Daly, the bank and Bowers defendants, and alleged that the chattel mortgages held by the latter were fictitious and fraudulent, and made without consideration and for the purpose of hindering, delaying and defrauding the creditors of said Daly, and asked that the same, for said reasons, be set aside and held for naught. Whatever might be the legal effect of the notice imparted by Mr. Ellis to the agent of plaintiffs in error that these mortgages were fraudulent, we think that the possession by the coroner of the goods under the writs of attachment was sufficient to excite an inquiry from R. L. McDonald & Co. as to the grounds of said attachment and whether Mr. Andrews, the attorney for plaintiffs, read the papers in the attachment suits or not, it is shown that he had them in his office and had every opportunity to inform himself as to the charges of fraud made by the attaching creditors in their petitions and affidavits concerning the two mortgages.
It will not do to say, as plaintiffs in error contend, that no duty was owing from' R. L. McDonald & Co. to these attaching creditors, and that any investigation made could have been attributed to nothing better than mere idle curiosity. Suppose the contract relating to the replevin suit and the disposition of the goods had never been made, but instead the plaintiffs in error on the same date had bought the mortgages of the bank and Bowers: could it be said that, with the information imparted to them by Mr. Ellis and the notice resulting from the possession of the goods by the coroner under the writs of attachment, they could assume the attitude of innocent purchasers? The plaintiffs, having a mortgage themselves, could not wholly ignore the claims of creditors who were interested in having the mortgaged property bring as gx’eat a price as possible, and in seeing that the value of the surplus, after plaintiffs’ mortgage was satisfied, was not diminished, as this surplus was the fund out of which their claims ag'ainst Daly might be paid. No chattel mortgagee can recklessly, or by resort to fraud, waste or dispose of the goods upon which he has a lien, though the same be entirely valid, to the prejudice of creditors less favored in having no security. In such case the mortgagee is required to exercise such good faith as is demanded of trustees in general, to the end that after the mortgage is paid there may be something saved for the general creditors. We think there was evidence sufficient to sustain said finding. In the case of Collingsworth v. Bell, 56 Kan. 338, 43 Pac. 252, Mr. Justice Allen, speaking for tlie court, said :
“The position taken by counsel for plaintiff in error is, that the validity of the mortgage to J. W. Rankin was fully established, and was assumed by the court in the instructions to the jury, and this being só, the right of the mortgagee to hold possession of the goods himself, or to transfer them to whomsoever he pleased and for whatsoever consideration, was absolute, and could not be challenged on the ground of fraud by the creditors of Rankin Bros. ; that, as against the mortgagee, Rankin Bros, had no attachable interest in the property, and that their creditors had no standing for an attack on the validity of any transfer of the property the mortgagee might see fit to make. There is much plausibility in the argument, but it is not sound. Although the legal title to mortgaged chattels and the right of possession after condition broken vest in the mortgagee, that title is not a full and absolute title, but is still subject to the equitable rights of the mortgagor, and whatever surplus remains of the mortgaged chattels after satisfaction of the debt is an asset of the mortgagor to which his creditors have a right to look for the satisfaction of their claims. A fraud may be committed by the parties to the mortgage and a purchaser buying from a mortgagee, as against creditors of the mortgagor. If it were not so, a mortgage for a trifling sum on a large stock of goods might be used as a means for perpetrating the grossest kind of a fraud -on creditors.”
Analogous to the case at bar is that of Hadley v. Adsit, 3 Kan. App. 122, 42 Pac. 836. Linthicum, a merchant, was indebted to Hadley and gave him a mortgage on his stock of goods as security. Possession was taken under this mortgage. The parties then entered into an agreement to defraud the creditors of the mortgagor “ and prevent them from securing any part of their debts out of the surplus of the mortgaged property.” To accomplish this a fraudu lent transfer of Linthicum’s equity of redemption was made to Pladley. Creditors of Linthicum obtained judgments and levied on the goods in Hadley’s possession. The latter brought replevin for the goods, and this action against the officer was the case under consideration. The district court instructed the jury, in substance, that if they found that Hadley, the mortgagee, after taking his chattel mortgage, went further and entered into a transaction with Linthicum for the purpose of placing his property beyond the reach of Linthicum’s creditors and depriving them of whatever surplus there might be over and above his mortgage, then the whole transaction from first to last, including the chattel mortgage, would be void, and Hadley would have no rights as against those creditors ; and if the transaction was tainted with fraud at all, the taint exists clear through and vitiates entirely his title. Commenting on this instruction, Johnson, presiding judge, used this language :
“We think that if this transfer was made for the purpose of defrauding the creditors .of Linthicum it tainted the entire transaction with fraud from its inception ; that if the plaintiff acted with a fraudulent purpose in the final purchase of this stock and fixtures, it destroyed all the acts of good faith that may have preceded. It was his duty, in taking the mortgage and possession under it, after he became aware of the pressing demands of wholesale houses for payment from the mortgagor, to act in all subsequent matters in good faith toward the creditors of Linthicum, and if he entered into any scheme thereafter to prevent the creditors from receiving the surplus over and above the payment of his claim it was a fraud from its inception. We think this instruction was correct, under the evidence in this case.”
.The plaintiffs in error rendered valuable assistance, through the medium of this replevin suit, to the bank and Bowers, enabling the latter to absorb the surplus after the mortgage of plaintiffs was satisfied, and withhold the same from creditors. having just claims against Daly. R. L. McDonald & Oo. might have interpleaded in the attachment suit and, having had a valid mortgage, could have secured payment of the same out of the proceeds of the attached property, leaving a handsome balance to be applied on bona fide claims against Daly. Being put upon inquiry as to the good faith of the two prior mortgages, they are held to know what they might have discovered. Their agreement with the other mortgagees places them in the position of attempting to divert the surplus from that channel through which the law directs that it shall go, and convey it to fraudulent claimants having no valid demands upon it.
We think that the conclusions of the court below were fully justified by the evidence, and that its judgment was right. The judgment will be affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
Ferdinand Westheimer & Sons conducted a wholesale liquor business at St. Joseph, in the state of Missouri, and were authorized under the laws of that state to sell intoxicating liquors. In 1893 their agent and traveling salesman, who was -a resident of Missouri, came to Kansas and solicited an order from the defendant in error at Leavenworth for a barrel of whisky, subject, however, to the approval of the plaintiffs in error at their place of business in Missouri. After the receipt of the order the latter approved the same, selected a barrel of whisky from their stock, delivered it on board cars at St. Joseph, Mo., consigned and addressed to the defendant at Leavenworth. The same was carried by rail to the latter place, where the defendant paid the freight, and the liquor was delivered to him by the common carrier. The defendant refused to pay for the whisky, and an action was brought in the court below to recover the price thereof. The evidence introduced by the defendant tended to prove that he purchased the liquor for the purpose of reselling it unlawfully in Kansas. Upon these facts the trial court gave the jury the following instruction :
“If the jury believe from the evidence that the defendant Weisman was engaged at Leavenworth, Kan., in the unlawful sale of intoxicating liquors at the time of the transaction with the plaintiffs; that the plaintiffs reside and conduct a wholesale liquor business at St. Joseph, Mo., being authorized under the laws of Missouri so to do ; that the plaintiffs sent their agent, who also resided in Missouri, into Kansas to solicit orders for the sale of liquors ; that the agent called upon the defendant at Leavenworth, Kan., and secured from him an order for a barrel of whisky at the price sued for, subject to the approval of the plaintiffs at St. Joseph, who thereafter approved the same in Missouri, selected the barrel of whisky from their stock there, and delivered it on board the cars at St. Joseph, Mo., addressed to the defendant at Leavenworth, and the railroad company afterward transported the same to defendant at Leavenworth, Kan., and he paid the freight charges to the railroad company, in such case you should find for the defendant.”
There was a verdict and judgment for the defendant. Plaintiffs below prosecuted proceedings in error to the court of appeals, where the judgment was affirmed. (8 Kan. App.-, 54 Pac, 332.)
As a part of the instructions, the trial court read to the jury section 32, chapter 101, General Statutes of 1897 (Gen. Stat. 1889, ¶ 2550), which reads :
“Any person who shall take or receive any order for intoxicating liquors from any person in this state, other than a person authorized to sell the same, as in. this act provided, or any person who shall directly or indirectly contract for the sale of intoxicating liquors with any person in this state, other than a person authorized to sell the same, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished therefor as provided in this act for selling intoxicating liquors.”
The plaintiffs in error devote almost their entire-brief to a discussion of the constitutionality of said, section 32 so far as it relates to non-residents making sales in Kansas, in that it infringes upon the right of congress to regulate interstate commerce. It is not necessary, however, in view of the former decisions of this court, to enter upon a discussion of that question. It was held in Distilling Co. v. Nutt, 34 Kan. 724, 10 Pac. 163, that a sale of intoxicating liquor by a citizen of another state in the state of Kansas was lawful to the extent that a recovery for the purchase-price of the liquor might be had from the purchaser,.although the liquor was purchased for the purpose of unlawfully selling the same in this state, provided that the seller in no manner participated in the unlawful purpose and did not derive any benefit from any of the illegal acts perpetrated or intended to be perpetrated by the purchaser in this state. Again, in Feineman v. Sachs, 33 Kan. 621, 7 Pac. 222, it was held to be not enough that the seller knew that the purchaser had sold liqors in violation of law and that his intention was to dispose of those purchased in the same way, that mere knowledge of an illegal purpose of the buyer is not sufficient to invalidate a sale made in Missouri, and that in order to render the sale void and defeat a recovery of the purchase-price ■ there must be some participation or interest of the seller in the act itself.
The penalty of section 32 above quoted is inflicted upon the very person who takes or receives an order from any person in this state not authorized to sell liquor, and hence the agent receiving an order _ for whisky here would be amenable to the penalties of the law. But it would be beyond the power of the legislature to make persons not within the state subject to arrest and conviction by any acts done in the matter of sales of intoxicating liquors. Weisman, the purchaser, was not particeps criminis with the agent. (The State v. Cullins, 53 Kan. 100, 36 Pac. 56.) The statute can only apply to acts done here. If the defendant in error had gone to St. Joseph, Mo., and bought the whisky, haying it shipped to himself at Leavenworth, it could not be claimed that the seller had violated any statute of Kansas, and the manner of its purchase through an agent in legal effect was the same as if Weisman had gone to St. Joseph and bought there. Nor was the order given by Weisman to the agent different in effect from a purchase made by letter written at Leavenworth by the defendant and mailed to Westheimer & Sons, at St. Joseph, who, on receipt of the same, approved and accepted the order and shipped the goods. The agent made no sale, and could only be liable under the statute for the taking of an order for intoxicating liquor. The statute operating only on the agent cannot prejudice the rights of Westheimer & Sons, who made the sale in another state. The agent did no more than make an offer of sale subject to the approval of his house. The final acceptance of the order and the consummation of the sale occurred in Missouri, where such sales were lawful. Being lawful there, a recovery of the price of the whisky can be had in our courts. Section 32 of the statute having no extraterritorial force, the case at bar falls within the rule of Feineman v. Sachs and Distilling Co. v. Nutt, supra.
The judgments of the court of appeals and of the district court are reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Doster, C. J. :
This wTas an action brought by J. H. Bradford against the British America Assurance Company upon a policy of fire insurance, executed under what is called the “ valued-policy law.” (Laws 1893, ch. 102.) The policy contained a forfeiture clause terminating the rights of the insured under it in the event that more than $3000 additional insurance should be placed upon the property. It also contained stipulations providing for arbitration in the events of loss and a disagreement as to the amount justly payable. The amounts of the risks, together with descriptions of the property upon which, taken, were stated in the policy as follows :
“$666.00 on his three-story and basement, stone and frame, shingle-roofed, water-power, flour-mill building, situate,” etc.
“$1334.00 on all fixed and movable machinery, gearing, shafting, belting, tools, and scales, while contained in above-described building.”
The insured property was totally destroyed by fire. The insured had placed upon it, contrary to the provisions of the policy, more than $3000 additional insurance. After the fire, correspondence occurred between the insured and the company’s general counsel looking to a settlement of the loss, and personal negotiations with the same end in view were also had between him and the company’s adjuster. The insured exhibited the policy in question to the adjuster and informed him of the overinsurance. After receiving this information and examining the policy, the adjuster stated to the insured that his policy was “all right.” The insured likewise informed the company’s, general counsel of the overinsurance. Upon receiving this information the counsel failed to make any claim of forfeiture, but wrote to the insured that, while not waiving the right.of forfeiture, he would reserve the matter for investigation and consideration. After this the company and the insured chose arbitrators to determine the amount of the loss. The arbitration was not had, for some reason not clearly explained to us in the briefs of counsel, and which we have not examined the-record to ascertain. Whatever it may have been it is immaterial to a correct determination of the case. After the failure of the attempt to arbitrate suit was instituted. Special findings were made by a jury and upon them judgment was rendered for the full amount of the policy, together with an attorney’s fee to plaintiff as allowed by the statute.
The insurance company prosecutes error to this court. It contends: (1) That the, mill machinery and fixtures described in the second of the above-quoted clauses of the policy were not real property, but were personal property, and therefore that the loss as to'them was not covered by the terms of the valued-policy law of 1893 ; (2) that the action cannot be maintained as to such personal property because of the agreement to arbitrate concerning it; (3) that the policy was forfeited because of a violation of the clause in it against overinsurance; (4) that the statute allowing attorney’s fees to plaintiffs in such cases is unconstitutional. None of these contentions is sound. As to the first the jury was specially asked : “Was the machinery covered by the policy of insurance in this case firmly fixed and attached to and connected with the building, and intended to be a part of the building, and treated as such by all parties hereto?” This was answered : “Yes.” This finding establishes the character of the mill machinery as real property, and therefore brings it fully within the terms of the valued-policy law. See in this connection Havens v. Fire Ins. Co., 123 Mo. 403, 27 S. W. 718. The second proposition of the plaintiff in error falls with the first. If the mill machinery was not personal property there was nothing to arbitrate. The policy, covering nothing but real property, must be paid in full. The third claim of error is also unsound. The plaintiff in error, with knowledge of the overinsurance, a fact entitling it to declare a forfeiture of the policy, made no such declaration, but negotiated with the in sured upon the assumption of its liability for some amount. This was a waiver by it.
“ It may be asserted broadly that, if in any negotiations or transactions with the insured, after knowledge of the forfeiture, it (the insurer) recognizes the continued validity of the policy, or..does acts based thereon, or requires the insured, by virtue thereof, to do some act, or incur some trouble or expense, the forfeiture is, as matter of law, waived ; and it is now settled . . . that such a waiver need not be based upon any new agreement or an estoppel.” (Titus v. Glens Falls Ins. Co., 81 N.Y. 410.)
The fourth objection, relating to the constitutionality of the act of 1898, allowing attorney's ffees to plaintiffs in suits upon fire-insurance policies, is likewise unsound. It has been held by this court that a similar statute, imposing attorney's fees in suits against railroad companies for negligently setting out fires, is not a violation of the fourteenth amendment to the constitution of the United States. (Railroad Co. v. Matthews, 58 Kan. 447, 49 Pac. 602.) In that case the statute under consideration was held to be a police regulation, proper to be made and enforced, in view of the public character of railroad companies and the frequency with which injuries by fire were committed by them. In principle the present case is nowise different from the one cited. Fire insurance has come to be a business public in its nature. It has come to be “clothed with a public interest,” and is therefore properly a subject of legislative regulation. The state is interested in the preservation of the property, of its citizens, that the general values of the commonwealth may not be impaired. Especially is it interested in the preservation of its homes and their rebuilding when destroyed. To the end that insurance companies may be compelled to respect the obligations voluntarily taken upon' themselves to subserve the policies of the state in these respects, the legislature may rightfully impose upon them the repayment to insurers of attorne}1^’ fees necessarily incurred in suits to make good their delinquencies. To do so is no violation of the fourteenth amendment declaring that “no state shall deny to any person within its jurisdiction the equal protection of the law.” That amendment has never been held to deny to a state the right properly to classify the subjects of its legislation and to impose upon the different classes differing restrictions and regulations. On the contrary, it has been repeatedly held that such right of classification exists. It was so held in Gulf R. R. Co. v. Ellis, 165 U. S. 155, upon which counsel for plaintiff in error rely. The fundamental error, however, in that and similar cases is the failure to differentiate railroad, insurance and other like corporations from private individuals and purely private corporations, and to view the public character of the former and the private character of the latter as bases for a just and reasonable classification, as was done by the courts in the older and better-considered cases. Between the subjects of the classification made in the act of 1893 there is no discrimination; there is no denial to any one of the equal protection of the law. It will be observed that the statute in question exempts no classes of fire-insurance companies. Whether foreign or home, whether of great or small capital, whether “old line,” mutual, or fraternal, whether doing much or little business, all are included within its terms. The law of 1893 is not unconstitutional.
There is no merit in any of the contentions of plaintiff in error, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was a motion by certain stockholders of the plaintiff in error, the Home Mining Company, a corporation, to set aside a sale of the corporate property. The defendants in error had recovered a judgment against the corporation and had levied upon and appraised and sold some of its real property. The corporation itself made no resistance to the sale proceedings, but several of its stockholders presented to the court the following motion to set aside the sale :
“ On this day come John Volz, James Foley, C. S. Hartough, and other stockholders in the above defendant mining company, and move the court to set aside, the sale heretofore made on the 8th day of November,. 1893, for the following reasons : (1) Because no appraisement of said property has ever been made according to'law. (2) Because the appraisers did not see the property levied upon when they made their appraisement and the appraisement was not made 'upon actual view’ of the property levied upon.”
There is nothing in the record to show why the stockholders instead of the corporation took upon themselves the burden of moving to vacate the sale. The motion was overruled, and from the order overruling it the' stockholders, in the name of the corporation, prosecute error to this court. It cannot be maintained. The directors of a corporation constitute its governing body. The executive officers of the company, either by special order of the directors or by general rule prescribed by them, or in pursuance of general authority implied from their positions and presumed to have been conferred upon them, are the ones to prosecute or defend legal proceedings in behalf of the corporation. If the directors be derelict in their duties, and through wilful neglect or for a fraudulent purpose fail to protect the corporate interests, the stockholders may do so in their stead, but to entitle them to do so it must be made to appear that the corporate officers, who are primarily charged with the duty, are wilfully or fraudulently neglectful ¿of it. (Cook, Stockholders, 3d ed., § 750; A. T. & S. F. Rld. Co. v. Comm’rs of Sumner Co., 51 Kan. 617, 33 Pac. 312.)
As before stated, no showing of reasons for the maintenance of the proceeding in question by the stockholders was made, and the judgment of the court below will therefore be affirmed. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action brought by the Dominion National Bank of Bristol, Virginia, against E. C. Manning, to recover the amount claimed to be due upon two promissory notes — one for $2235, the other for $1500, with interest on both — and to foreclose a mortgage executed to the said E. C. Manning by one E. F. Manning, and which the former had assigned to the plaintiff as collateral security. E. C. Manning denied liability on both notes except as to $230 of the larger one. As to the remainder of that one, he claimed that it was a renewal of former notes which he had been induced to execute to the bank without consideration and under an agreement that notwithstanding their terms he should not be held to their payment. His claim in substance was that the plaintiff bank was desirous that he appear to be one of its stockholders and act as one of its directors ; that the president of the bank asked him to take stock in it, agreeing to accept his notes for the stock, and agreeing that the dividends on the stock should be applied to the payment of the interest upon the notes ; that the transaction should be merely colorable ; that the stock should never be in reality his, and that neither principal nor interest of the notes should ever be demanded of him.' To this he says he assented after some persuasion. He executed his notes, was entered as a stockholder upon the books of the bank, stock certificates were issued to him but never delivered, but in lieu thereof a receipt for them was issued to him and the certificates retained by the bank as collateral to his notes. Subsequently, the mortgage sued upon was likewise delivered to the bank as collateral to them. Objections were made to this evidence upon the ground of its being parol and in contradiction of the terms of the contract of indebtedness evidenced by the notes. These objections were overruled, and instructions predicated upon the theory of the admissibility of such evidence were given to the jury. The defense to the smaller note was that other securities belonging to E. C. Manning had been pledged as collateral to it, and that the bank had failed to use proper diligence in the collection of the collaterals, whereby they became wholly lost on account of the insolvency of the principal debtor. The jury found in favor of Manning upon both these defenses, and the plaintiff bank prosecutes error to this court.
The questions raised under the answer as to the negligence of the bank in failing to collect the securities collateral to the note of $1500 are wholly questions of fact. As to them the findings of the jury are conclusive upon us, and they need not be further noticed.
The claim of error in the reception of evidence contradicting the terms of the other note, and the instructions of the court countenancing the defense of non-liability upon it, are well taken. The rule is unquestioned that parol evidence is not admissible ’to control, add to, vary or contradict the language of a promissory note or other valid written instrument when sued upon by the payee or obligee named ku it. (Whart. Ev., § 1058; Underhill, Ev., §§ 205, 206; Milich v. Armour, ante, p. 229, 56 Pac. 1.)
The defendant in error, however, cites Higgins v. Ridgway, 153 N. Y. 130, 47 N. E. 32, as establishing an exception to the rule. In that case the court held that where one makes a note to the order of a bank, at the request of the president of the bank, acting for it, and upon his assurance that the maker will not be held on the note, and will not be responsible for it, and delivers such note without receiving anything for it, such transaction constitutes a conditional delivery of a note, which may be shown on the trial' of an action on the note by the bank against the maker, and is a good defense to such action. If the decision of that case were to be regarded as a sound exposition of the law, it is nevertheless distinguishable from the one before us. In that case, as more plainly appears from the opinion, the judgment of the court was rested upon the ground of lack of consideration. The maker of the note got nothing for it. In this case the maker of the note got something for it. He got certificates of stock ownership in the bank ; he got a contract from the bank — one that was enforceable against it. It is true that he does not seek to enforce it; he does not desire to enforce it, but he could enforce it, and no court would tolerate in defense of an action by him upon it the same kind of claim by the bank which he now makes in opposition to the-bank’s suit upon-his part of the contract. Breneman v. Furniss, 90 Pa. St. 186, is to the same effect as Higgins v. Ridgway, supra, and is alike distinguishable from this case.
One or two other claims of error are made,, but a review of them is not necessary. The judgment of the court below is reversed, and a new trial ordered. | [
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The opinion of the court was delivered by
Johnston, J. :
On July 17, 1895, the Parkinson Sugar Company borrowed $10,000 from the Bank of Fort Scott. The debt was represented by two notes of $5000 each, due in six and twelve months, and the payment of the same was secured by a mortgage on the property of the sugar company. On October 8, 1895, the sugar company borrowed an additional $5000 and gave the bank its note payable in six months thereafter, secured by a mortgage on the company’s property. Default having been made in the payment of the notes and mortgages, a foreclosui'e proceeding was begun on August 5, 1896, and in September following it resulted in a judgment against the sugar company for $15,870.18. Soon afterward an order of sale was issued on the judgment, but before the sale was made John R. Kearns, a stockholder of the sugar company, instituted this action to enjoin the sale, alleging that the notes and mortgages were .executed without authority, and in fraud of his rights, and that the bank had full knowledge of the facts and of such invalidity. Subsequently the sugar company intervened in the action and reiterated the charges of fraud, want of authority, and invalidity. A temporary injunction was obtained at the beginning of the proceedings, but on the trial the injunction was dissolved and judgment given to the defendants. Complaint is made that the facts do not warrant the judgment of the court. Although a great mass of testimony was received, much of which was conflicting, only a general finding of the court was made, and therefore, on the disputed questions, the controversy must be deemed to be closed.
It appears that the sugar company was organized in 1886, and the purpose and powers of the company, as declared in the charter, were these :
“The manufacture of sugar, syrup, starch, grape sugar, glucose and other products from sorghum, cane, cane seed, corn and other saccharine and amylaceous substances ; for the erection and maintenance of factories and the purchase and sale of real estate and plantations therefor ; for the purchase, location and lajdng out of town sites and the sale and conveyance of-the same in town lots and subdivisions or otherwise, and for the transaction of manufacturing, mechanical and mercantile business.”
For a number of years the operations of the company were mainly confined to the manufacture of sugar and syrup, but as this business was necessarily limited to tlie cañé season, only a small part of the year, the extension of their manufacturing operations became a subject of discussion among the stockholders and officers of the company. At the January, 1895, meeting of the stockholders the directors were instructed to examine into the matter of adding a match factory and a veneer wood-working establishment to the company’s plant, and, if it should be deemed desirable that such industry be added to the company’s business, the directors were authorized to borrow $10,000,.and to secure the loan they were authorized to mortgage the real estate of the company. On March 13, 1895, a committee was appointed by the'board óf directors to visit Chicago and investigate the business of making matches, but before the committee had gone, and on March 15, the action of the board in appointing the committee was revoked and the directors determined to proceed at once to construct the match factory and the veneer wood-working establishment, which was done. At the July meeting of the board a resolution was adopted to borrow $10,-000 to pay certain mortgage indebtedness existing against the company and to complete the match and veneer wood-working plant, which was in process of construction. 'In pursuance of this resolution the two notes already mentioned, of $5000 each, dated July 17, 1895, were executed, as well as a mortgage to secure their payment. The testimony tends to show that a mortgage debt of the company to the extent of $7000, contracted before the new enterprise was entered upon, was paid out of the $10,000 loan obtained from the Bank of Eort Scott. Later in the year, and when the company had overdrawn its account with the Bank of Fort Scott, another mortgage loan of $5000 was obtained, as we have seen, from the same bank. The notes and mortgage are the basis of the foreclosure judgment, and that the amount of the loans was actually paid to and expended in the interest of the company is well established. The construction of the new industry and the addition of the same to the company’s plant were well-known to the officers and to most of the stockholders of the company long before the notes and mortgages in question matured or the judgment of foreclosure was rendered. Indeed, the parties complaining were generally informed of the operations of the company from the beginning, but no steps were taken to prevent the carrying out of the project until the present proceeding was begun.
The first attack made upon the judgment of foreclosure is that the charter of the company did not warrant the manufacture of matches and woodenware, and that the obligations created for this purpose were unauthorized, and therefore invalid. The purposes for which a corporation is formed are required to be set forth in its charter, and we look tp this declaration, as well as to the general law under which it was organized, to determine the nature and extent of its corporate powers and privileges. These constitute the measure of its authority, and it can exercise no other powers than those expressly or impliedly conferred by the charter. From the declared purposes already quoted from the charter, it will be seen that the scope of the purposes and powers of the company was not restricted to one line of business or to the manufacturé of a single product. It was authorized not only to manufacture sugar and syrup, but to erect and maintain factories, to purchase and sell real estate and plantations therefor, and to purchase, locate and lay out town sites and to dispose of town lots. While the latter provisions may be regarded as incidental to the manufacture of sugar and syrup, the incorporators expressly added a provision authorizing “the transaction of manufacturing’, mechanical and mercantile business.” Manifestly it was intended to enlarge the scope and extent of the powers of the company by this declaration, and no reason is seen why it cannot be given effect. Nothing in the statute under which the corporation was formed limits it to the manufacture of a single article or product. On the other hand, our law is exceedingly liberal in allowing a combination of the lines of business which may be carried on by a single corporation. It authorizes “the transaction of any manufacturing, mining, mechanical, chemical, or mercantile and agricultural implements and produce business, either separately or all combined.” (Gen. Stat. 1897, ch. 66, § 4; Gen. Stat. 1889, ¶ 1157.) Under the broad and liberal provisions of the statute and charter, it cannot be held that the new industry is outside of the charter powers of the company.
It is next contended that the officers of the company acted fraudulently and in excess of the authority given by the stockholders. In the state of the record, questions of bad faith and fraud are hardly open to review in this court. Much of the testimony tended to show good faith and honesty in the transaction of the busi ness, and we find little that supports the charge of conspiracy to “freeze out” the interest of Kearns or to wreck the corporation. No special findings of fact were asked or made, and it must be held that the general finding settles the controverted questions of fact in favor of the defendants. Authority to add the new industry, < and to provide money with which to pay for the same, was given, as we have seen, at the stockholders’ meeting of January, 1895. Those who are now complaining joined in conferring that authority on the directors. It is true a question has been raised as to whether such authority included the manufacture of woodenware, but from the testimony and finding of the trial court we are bound to hold that it was included. It may be that the project was impracticable and visionary, and that it was unsuccessful in operation seems to be conceded, but that is no reason why the company should repudiate its contracts and obligations made and assumed in carrying it out, nor any reason why the plaintiff Kearns should defeat the enforcement of a judgment based on such contracts and obligations. The project was not only undertaken with the authority of the stockholders, but it was openly carried on before the eyes of all interested parties, and, besides, it appears that the action of the directors was approved at the stockholders’ meeting held in 1896. At that time the new industry had been started, machinery for making matches and woodenware had been purchased, and the money to pay for the same had been expended. The complaining parties had knowledge of the building and carrying on of the new industry as it progressed, and also that it was done with borrowed money. From this expenditure the company has acquired considerable property, which it retains, and some of it has been disposed of for the benefit of the company. In the absence of fraud, it cannot receive and retain the fruits of a contract and then repudiate its obligation arising on the same. It cannot borrow money for a manufacturing experiment and shake off the obligation because it was unsuccessful.
There is a claim that more money was expended for the purpose named than was authorized by the stockholders. It is true that the mortgage debt is greater than the amount authorized to be used in establishing the new industry, but the testimony shows that a large part of the money derived from the mortgage was used to pay the ordinary expenses of the company growing out of the manufacture of sugar and syrup, and that much less than $10,000 of the money borrowed from the bank was expended in establishing a factory for making matches and woodenware. In any event, the parties complaining are not in a position to invoke the application of the doctrine of ultra vires. (Town Co. v. Morris, 43 Kan. 282, 23 Pac. 569; Town Co. v. Russell, 46 id. 384, 26 Pac. 715; Railroad Co. v. Johnson, 58 id. 175, 48 Pac. 847.)
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Allen, J. :
Alfred Carter was a brakeman employed by the railway company. On the 17th of October, 1896, he was assigned to duty as head brakeman on an extra freight-train moving west from Emporia. There was a work-train and gang of track-layers engaged in relaying the track with new rails in the vicinity of Moon creek, which is about five miles west of Emporia. Pearson, the engineer of the freight-train, was advised of the location of the work-train when he left Empoxfia, and could see it from his engine when about two miles away from it. As he approached, the work-train started west to go on the siding at the station called Sterry, but after crossing Moon creek bridge it was requix*ed to stop on account of the condition of the track ahead of it. When Pearson’s train was about a mile from Moon creek bridge, running at the rate of twenty to twenty-two miles an hour, he received a signal from a flagman stationed near a wagon crossing about half wa.y from the bridge, and shut off steam and allowed his train to run down towards the bridge. When his engine was on the .bridge and within four to six telegraph-poles of the caboose of the work-train he received a signal to stop from the brakeman of the work-train. Pearson’s train consisted of engine and tender, thirty-three freight-cars, and a caboose. Part of the cars were loaded, and the most of them were equipped with Westinghouse air-brakes. On receiving the signal to stop Pearson applied the air-brakes. The pin coupling the tender ta the front freight-car broke in two, and the engine separated from the train. The air-hose was thereby disconnected and the brakes set with full force. At the time the brakes were applied Carter was standing on the front end of the front car, which was a box car, and as the engine moved away from it he fell forward and was ‘run over and killed. This action was brought by his widow, as administratrix of his estate, to recover damages from the railway company for negligently causing the death of her husband. The petition charges, among other things, as negligence :
“That said train last mentioned was carelessly and negligently run too near said other train on the same track as aforesaid and wTas carelessly and negligently brought to a sudden stop by thé engineer while running at an unnecessary and improperly high rate of speed, and when the air-brakes were applied by the engineer in a reckless, careless and negligent manner, without warning to said intestate, the engine was kept at the rate of speed attained just prior to said application of the air-brakes, and by reason of such carelessness and negligence and the consequent unnecesary sudden stopping of said train while the engine was; going ahead at such a high rate of speed the train was; broken in two just in front of the front car of said train, and the said Alfred Carter, then being at his post of duty on the top of the front freight-car, was thrown violently to the ground in front of said car and killed.!i
The jury returned a verdict in favor of the plaintiff for $4129, together with answers to numerous special questions. Judgment was entered on the verdict, and the railway company now seeks to reverse it.
One of the principal complaints is of the action of the court in admitting in evidence certain rules adopted by the company and. printed on the time- cards for the guidance of its employees. Especial complaint is made of the reading of rule 89, which is as follows: “Freight-trains following each othe.r must keep not less than five minutes apart (except in closing up at stations, or at meetings, or passing points) unless some form of block signal is used.” The burden of the objection to this and the other rules put in evidence is that they were not applicable to this case; that they applied to trains properly denominated freight-trains and had no application to a work-train. Some of the rules which were read seem to have very little, if any, relevancy to the case, but it is impossible to see how any distinction can be drawn between the measure of care required in approaching a work-train and a freight-train. The dangers incident to a collision would appear to be precisely the same, and the duty to avoid running into a work-.train no less than that required with reference to a freight-train. None of the rules offered imposes a higher degree of care on the man in charge of a train than the law imposes in a case like this. The railway company was, therefore, not prejudiced by their admission. The company sought to prove by the engineer, Pearson, that rule 89 had no application to the case of a freight-train approaching a work-train. The questions mostly call for his understanding of the rule and the interpretation he would give it. There was no error in excluding this testimony. Pearson’s understanding or explanation of the rule would' have neither increased nor diminished the- duty resting on him to use care in the management of his train.
It is next argued that the testimony and findings of the jury are insufficient to uphold the recovery; that no negligence on the part of the engineer was shown by proof or found by the jury ; that the application of the air-brakes was necessary, and was made in a proper and skilful manner ; that the breaking of the coupling-pin was fortuitous, and the sudden stoppage of the train due to the disconnection of the air-hose. The only negligence imputed to any one contributing to Carter’s death was that of Pearson in running his train too near to the work-train and then applying the brakes with violent force. The jury found that at the time Hall, the brakeman of the work-train, gave Pearson the signal to stop, the freight-train was running at the rate of eight to twelve miles an hour and was then within four to six telegraph-poles of the rear end of the work-train. The telegraph-poles are shown to have been about 165 feet apart. The jury also found that Pearson did not operate his train in an ordinarily careful manner from the time he saw the work-train. It is contended that the finding that the brakes were applied with violent force is unsupported by the testimony. Pearson testified that he gave the ordinary service application. It is said also that the only negligence found was in not applying the brake sooner ; that this is not within the averments of the petition, and did not cause or contribute to Carter’s death. Both these findings appear to us fairly within the issues made by the pleadings.
Counsel for plaintiff in error would disconnect the negligent running of the train so near to the work-train and at such a high rate of speed from the sudden stoppage of it, and seeks to relieve the company from the effects of the misconduct of Pearson in one of these respects at least. It is clear, however, that the view taken by the jury, and well supported by the evidence, was that Pearson was negligent in failing to bring his train under control before it ran so close to the work-train. It was long and heavy, mov ing on a slightly descending grade toward the bridge. The work-train was in full view, and he ought gradually to have stopped his train at 'a safe distance from it. Instead of that he allowed it to maintain a speed of from eight to twelve miles an hour until he was so near as to require a more vigorous application of the brakes in order to prevent a collision. Notwithstanding the testimony of the engineer with respect to his gentle application of the brakes, the potent circumstance was before the jury that the engine broke the coupling-pin and pulled away from the balance of the train. The jury evidently inferred, and had a right to infer, that a solid iron pin would only be so broken when subjected to a violent strain, and that this strain was occasioned in this instance by retarding the motion of the cars through the application of the brakes, while the momentum of the engine remained with little, if any, diminution. This mode of handling a train the jury regarded as negligent, and while the immediate cause of Carter's death was the sudden stoppage of the car he was standing on, the engineer had induced a necessity for a sudden application of irhe brakes by running so near the other train at such a rate of speed. His whole conduct was properly before the jury and afforded ample ground for the verdict rendered.
Perceiving no error in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, J. :
.In this action the plaintiff sought to charge Benjamin M. Davies as a partner and to recover an alleged partnership liability of $9507. It appears that on November 15, 1886, W. E. Swift, F. E. •Holliday, A. P. Bowman, Joseph Freeman and A. B. Quinton purchased from Jacob Skillman for speculation and profit four lots in the city of Topeka for the •sum of $14,000, making a cash payment of $3000, leaving $11,000 to be paid in four instalments of $2750 each. No'partnership articles or written contract were made between the purchasers, but it was agreed that Swift and Holliday each held a one-fourth interest, and that each of the remaining parties held a one-sixth interest. On this basis each of the parties contributed his share to the cash payment, of $3000, and the understanding between them was that on all other and further payments of purchase-price, interest, taxes and other incidental expenses each of the parties was to contribute according to his respective interest, and that all profits that might be realized from a sale of the lots or any part of them should be divided among them according to the respective interest óf each. For convenience it was mutually agreed that a deed from Skillman should be taken in the name of one of the partners, "W. E. Swift, and that Swift and his wife should execute a mortgage on the property to secure the deferred payments.
It was understood that any of the parties could sell or transfer his interest in the adventure without consulting the others, and upon the transfer of an interest it was the practice of W. E. Swift to give, a statement or certificate that such interest had been transferred. On December 28,1887, Davies purchased the interest of Quinton, and at the time of the purchase Swift gave Davies a certificate to the effect that Davies was the owner of a one-sixth interest in the lots, describing them, and that they were taken subject to a like proportion of the $11,000 incumbrance on them. After that time the other parties recognized Davies as the owner of the Quinton share, and he contributed from time to time his pro rata share of the taxes levied against the property, and also his share of the interest accruing upon the unpaid purchase-money which was secured by the Swift mortgage. Quinton purchased the share of Freeman and was thereby continued as a party in the venture. After -Davies purchased an interest in the enterprise a sale of the lots was made for $24,000, and a cash payment of $3000 was then made, but the purchaser failing to pay the balance of the purchase-price his rights under the contract were forfeited. The cash payment of $3000 was received by Swift and Holliday, who acted for all the parties in collecting and disbursing the funds in. connection with this enterprise, and after paying certain expenses the balance of the $3000 was divided among the parties, and Davies accepted and appropriated his share of that fund. An offer of $18,000 for the lots was made, but this offer the parties interested refused.
The parties continued to pay the taxes and other expenses incidental to the enterprise up to and including the year 1892, but afterward default was made in the payment of the interest and purchase-money, and an action of foreclosure was begun against W. E. Swift and wife. On motion of Swift, his associates, Holliday, Bowman, Quinton, and Davies, were brought in as defendants, Swift alleging that they were all partners in the enterprise, and that each was liable as a partner for the unpaid purchase-money for which the action was brought. Personal service was obtained on Holliday and Quinton, and a judgment against them for the full amount of the purchase-money was rendered, but Davies and Bowman, being non-residents, were only served by publication, and hence no personal judgment was rendered against either of them. Under the foreclosure this property was sold for $2000 and credited upon the judgment rendered in that case, and in September, 1895, Swift and Holliday paid to the plaintiff the sum of $5000, and were thereby released from any further liability on the judgment rendered in that case. It does not appear that the parties interested in the original purchase of the lots in question ever at any other time purchased or held any other property than these lots. Upon the facts the trial court held that the enterprise did not constitute a partnership, that the parties in interest owned the lots as tenants in common, and that there was no liability on the defendant Davies.
The material facts in the case are not in dispute, and the question is presented here whether the joint adventure of these parties amounted to a partnership, and whether the defendant is liable as a partner. These questions are answered by the facts, and not much, if any, argument is required to show that all of the essential elements of a partnership were present in this business undertaking. The property was purchased for speculation and profit, and the pur chasers who associated themselves together as a unit were the joint owners of the same. No one of them owned any particular part of the lots exclusive of the others, but each had an interest in the whole in common with all the others. Although only engaged in the single business undertaking, the property was not purchased as a permanent investment or for improvement, but the enterprise was formed and carried on to buy and sell real estate for profit. As to this enterprise the parties were united as an entity ; together they owned property which was the substratum, of their business relation; and the agreement was that they were to divide the expenses and share the profits to be derived from trading in this property. The mere fact that the title was taken in the name of one of the parties, who executed a mortgage for the unpaid purchase-money, cannot change the relationship of the parties or the ownership of the property, as he was no more than a trustee holding the title for the convenience and benefit of all interested parties.
It is true that there were no articles of partnership nor written contract defining the interests, rights and obligations of the parties, but they are not essential to the existence of a partnership. In a somewhat similar case, where two joined in the purchase of a tract of land with a view of selling the same for profit, it was held to be a partnership transaction, and the court said : “In such cases real property may usually be considered in nearly the same manner as personal property, and the real intention of the parties with reference thereto, their contracts, promises, or mutual understandings, will govern, without reference to whether they have been red'ueed to writing or not.” (Tenney v. Simpson, 37 Kan. 363, 15 Pac. 187.)
In that case the court adopted the view that -where parties join together and purchase land for the purpose of sale and profits only, and not for permanent use, it will be regarded in equity as personal property, and that in such cases the statute of frauds has no application. It is there held that in such cases it is immaterial in whose name the purchase is made or the title taken ; that the property, wherever the legal title may be placed, will be deemed partnership property, and the parties entitled to the rights and subject to the liabilities of partners. It is not necessary that there should be a series of transactions nor that the relationship between the parties should continue a long time to constitute a partnership. It may exist for a single venture or undertaking. If there be a joint purchase with a view to a joint sale on joint account and a communion of profit and loss, it will ordinarily constitute a partnership transaction. (Stettauer v. Carney & Stevens, 20 Kan. 474; Tenney v. Simpson, supra; Tenney v. Simpson, 37 Kan. 579, 15 Pac. 512; Simpson v. Tenney, 41 id. 561, 21 Pac. 634; Yeoman v. Lasley, 40 Ohio St. 190; Hulett v. Fairbanks, id. 233; Kayser v. Maugham, 8 Colo. 232, 6 Pac. 803; Morse v. Richmond, 97 Ill. 303; Lindley, Part. 49.)
Nor is the fact that these parties did not call themselves a partnership a controlling one in determining their relations to each other and to third persons. Their understanding and their conduct, as stated and found by the court, when measured by the ordinary tests of partnership, clearly indicate that the original parties to the transaction occupied the relation of partners. Therq was a community of ownership of the property, community of power in the manage: ment of the business, and community of interest in the profits and losses arising from the undertaking. When taxes were to be paid or interest became due, or other incidental expenses of the undertaking were to be met, a fund was collected by one of the partners from all, and all shared in the fund arising from the sale of the property, and when the motion was made to bring them into the foreclosure proceeding and charge them as partners, those upon whom personal service was had appeared but did not combat the averment and claim that it was a partnership transaction.
It is strongly urged, however, that even if the original parties are deemed to be partners, Davies cannot be regarded nor held liable as a partner. The claim is that if he is an incoming partner there is no such assumption of the indebtedness of the partnership as will make him liable for the same. We are unable to see, however, that he occupies any different or better position than the other partners. It is evident that he was substituted for the retiring partner with the consent of the remaining partners, as he was recognized by them as having taken the place of Quinton, whose interest in the adventure he had purchased. He had full knowledge of the transaction, knew the amount for which the real estate was purchased, the amount that had been paid on the same, and the amount that still remained unpaid. _ By becoming a member of the partnership he made himself liable as a partner, and while it may be said that an incoming partner does not by the mere fact of joining the firm become liable for its prior debts, yet the case in hand is not like the ordinary debt of a general mercantile partnership. Here there was a single partnership transaction, a single contract, and the defendant could not identify himself with the firm and buy into the partnership contract without making himself liable for the obligations of that contract. When he joined the firm he made himself a part of an existing entity. The transaction was an entirety, and he could not acquire an interest in the property and in the partnership transaction without sharing in the obligation which formed a part of the contract. In other words, he cannot reap the benefits of the transaction and rer pudiate its burdens.
Very little testimony is sufficient to show that an incoming partner like the defendant makes himself liable for such an indebtedness. (Cross v. National Bank, 17 Kan. 337.) For five years Davies contributed to the funds raised for the purpose of paying interest, taxes and other expenses in the same way that the other partners did. He knowingly contributed to the payment of interest during that time on the unpaid purchase-money, and thereby adopted the debt as his own as fully as could have been done. His conduct during' this long period of time and the conceded facts in the case leave no opportunity to distinguish him from the other partners or except him from the liabilities chargeable against them.
The judgment of the district court will therefore be reversed, and the cause remanded with direction to enter judgment against defendant for the amount of the indebtedness remaining unpaid. | [
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The opinion of the court was delivered by
Johnston, J.:
E. C. Clark was charged with counseling, aiding and abetting in the murder of W. C. Boyd, and was found guilty of manslaughter in the second degree. The sentence imposed was imprisonment at hard labor for a term of five years, and the defendant appeals, alleging that several rulings of the court were erroneous and prejudicial. The court sustained the information as against an attack that it did not specifically charge the defendant as though he was a principal with the murderer of Boyd. The information first sets out at length the charge that Harry Postlewaite murdered W. C. Boyd, stating the place where, the time when and the manner in which it was done. It then proceeds in appropriate language to allege that E. C. Clark did aid, counsel, abet, hire and command Harry Postlewaite to commit the felony and murder in the manner alleged. The statute provides that “ any person who counsels,-aids or abets in. the commission of any offense may be charged, tried1, and convicted in the same manner as if he were a principal.” (Gen. Stat. 1897, ch. 102, § 228; Gen. Stat. 1889, ¶ 5180.) Under this provision the defendant might have been charged as principal with the murder of Boyd, and then if the evidence had1, been sufficient to prove that he aided and abetted in the murder he could have been convicted as if he were the principal. The claim is made that he can only be charged as a principal, and that, as the information 'charged him as accessory to the murder, it was insufficient.
He has no cause to complain. The information as drawn states the nature and cause of the accusation against him with more directness and certainty than it would have done if it had charged him as principal. He was, therefore, better informed as to the attitude which the state would assume when the case was brought to trial than if the charge had been made in the manner he suggests. The distinctions of the common law between principals in the first and second degree and accessories before the fact have been largely abolished, so that a guilty accessory may now be punished although the principal escape. (The State v. Bogue, 52 Kan. 19, 34 Pac. 410.) In the cited case .it is remarked that “if the crime be committed through the instrumentality of another the act of such instrument essential to establish the guilt of the person on trial must be shown,” and it certainly is to the advantage of the defendant to set forth a complete statement of thé crime, including the essential fact ithat it was committed through the instrumentality of ■another. It is conceded that the charge is sufficient 'to constitute the defendant an accessory at common law, and we think it is sufficient under the statute. It is clear that the defendant suffered no prejudice by reason of the form of the information.
.It is strongly urged that error was committed in ■'the admission of testimony of Harry Postlewaite. When he was offered as a witness in behalf of the •state, an objection to his competency was made, and the preliminary inquiry disclosed that about two years before that time he had been convicted of grand larceny in Sedgwick county, and being then only about seventeen years of age he was sentenced to be taken to the state industrial reformatory and ther,e confined until the managers or trustees thereof should declare that he was fully reformed. It was not shown that a pardon had been granted nor that the sentence had in any way been abrogated. No claim of that kind was made, but on the other hand the contention is that the conviction and sentence did not affect his civil rights, and that therefore no pardon was necessary. If the conviction and sentence rendered Postlewaite incompetent to testify, it would seem that a prima facie showing of incompetency was made when proof of the conviction and sentence was offered. While all witnesses tendered in court are presumed to be. competent and credible, proof of a conviction and sentence for an infamous crime creates a presumption of incompetency, and it then devolves on the party offering the witness to overcome the presumption by showing that the conviction and sentence are without force. The question remains, however, whether a person between sixteen and twenty-five years of age who lias been convicted of grand larceny and is adjudged to be taken to and confined at the reformatory loses his civil rights and is incompetent to testify.
At common law a person found and adjudged guilty of an infamous crime is deemed incompetent to testify as a witness in any court of justice unless the judgment of conviction has been reversed or a pardon granted. Our statute has modified the common law to the extent that in civil cases the conviction for a crime affects the credibility but not the competency of witnesses. It is provided that “no person shall bet disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same as a party or otherwise, or by reason, of his conviction of a crime, but such interest or conviction may be shown for the purpose of affecting his credibility.” (Gen. Stat. 1897, ch. 95, § 330; Gen. Stat. 1889, ¶ 4414.) See, also, Winter v. Sass, 19 Kan. 556. No like provision is to be found in criminal procedure, and the one with reference to the competency of witnesses does not except convicts from the common-law rule of disqualification. (Gen. Stat. 1897, ch. 102, §217; Gen. Stat. 1889, ¶ 5280.) It has, therefore, been held that “a person convicted of grand larceny and sentenced to imprisonment in the penitentiary is not a competent witness in a criminal case while the sentence remains unrevoked and such person not pardoned.” (The State v. Howard, 19 Kan. 508.) As the witness Postlewaite ’ was not sentenced to imprisonment in the penitentiary, the question remains whether he is disqualified as a witness.
It is conceded that if the convict has been, rendered infamous he is incompetent to testify in a criminal proceeding. But what is it that renders him infamous? Is it the nature of the crime of which he is convicted, or the character of the punishment inflicted? "Infamy” has been defined as a state.of incompetency "implying such a dereliction of moral principle as carries with it a conclusion of a total disregard to the obligation of an oath.” (1 Greenl. Ev., §373.) At common law treason, felony and such crimes as involve falsehood and were deemed to affect the administration of justice work the disqualification of a witness ; and prior to the adoption of the federal constitution it was held that the infamy which disqualified a convict to be a witness depended upon the character of the crime and not upon the nature of the punishment. (Pendock v. McKinder, Willes, 665; Gilbert’s Ev. 143; 2 Hawk., ch. 46, § 102.) The fifth amendment to the federal constitution, which provides that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, etc., has given rise to frequent definitions of the term "infamous crime.”
In some of the earlier decisions there' was a tendency on the part of the courts to hold that the question of infamy was to be determined by the nature of the crime and not at all by the character of the punishment, but the supreme court,of the United States settled that the test to be applied in determining whether an offense is an infamous crime is the character of the punishment which may be inflicted. (Ex parte Wilson, 114 U. S. 426, 5 Sup. Ct. 935; Mackin v. The United States, 117 id. 352, 6 Sup. Ct. 777; In re Claasen, 140 id. 200, 11 Sup. Ct. 735; Ex parte McClusky, 40 Fed. 71; 10 A. & E. Encycl. of L. 603; 1 Bouv. Law Dict. 1026.) In Ex parte Wilson, supra, however, it was held that the real criterion to be applied in such cases is'whether the crime is one for which the statute authorizes the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. If the accused be in danger of being subjected to an infamous punishment the crime is deemed to be infamous, although infamous punishment may not be actually inflicted. If this rule be applied to the case under consideration, it results in the conclusion that Postlewaite was infamous and incompetent to testify. Grand larceny, being a felony, is ordinarily punishable by confine'ment and hard labor in the penitentiary. All agree that punishment of this character renders the convict infamous and disqualifies him as a witness. The punishment in the present case was, as we have- seen, confinement in the industrial reformatory, and the character of the punishment and discipline there is reformatory rather than ignominious or infamous; however, the convict was subject to the infliction of the severer punishment. - The statute under which he was sent to the reformatory does not arbitrarily fix the punishment; and whether he was sent to the penitentiary or to the reformatory was left to the discretion of the trial judge. It provides :
“Any person between the ages of sixteen and twenty-five who shall be convicted for the first time of any offense punishable by confinement in the state penitentiary may, in the discretion of the trial judge, be sentenced either to the state penitentiary or to the Kansas State Industrial Reformatory, and any person who upon such conviction shall be sentenced to imprisonment in the Kansas State Industrial Reformatory shall be imprisoned according to this act, and not otherwise, and the courts of this state imposing such sentence shall not fix a limit of duration thereof. The terms of such imprisonment of any person convicted and sentenced shall be terminated by the managers of the reformatory as authorized by this act; but such imprisonment shall not exceed the maximum term provided b}?- law for the crime for which the prisoner was convicted and sentenced.” (Laws 1895, ch. 200, §7; Gen. Stat. 1897, ch. 184, § 11.)
Since it is left to the discretion of the trial judge, and the accused is in danger of being subjected to an infamous punishment, it falls within the rule announced by the federal authorities. As the statutes authorize the courtr to award an infamous punishment, the convict is deemed to be infamous, although the punishment actually administered be not infamous. In People v. Park, 41 N. Y. 21, it was held that a person under sixteen years of age who was convicted of burglary in the third degree ^as incom petent to testify as a witness, although he was sentenced to the house of refuge established for the reformation of juvenile delinquents.
The view of the court is that the conviction and judgment rendered Postlewaite incompetent as a witness, and that, as it does not appear that the disability has since been removed by a pardon or a reversal, the testimony should not have been received. His was the most important testimony that was offered in the case, and not being competent, a majority of the court hold that substantial error was committed in admitting it.
In the foregoing the writer has endeavored to state the views of the majority of the court as to the incompetency of Postlewaite, but he has been unable to agree in the conclusion reached. The authorities cited consistently hold that whether a crime is infamous is determinable by the punishment' to which a convict is subject, rather than the nature of the crime committed. A marked illustration of this may be found in our statute, where- a wilful libel is only a misdemeanor, and is therefore not infamous. Although involving falsehood, and of such a character as to render the offender unworthy of belief, it does not disqualify him as a witness; while one who even permits a game of “ craps ” to be set up or conducted in his building of on his premises is punishable by imprisonment at hard labor, and is therefore infamous. In England, and in most of the states, statutes have been enacted, in one form or another, removing the disqualification of infamy, so that convicts may testify, but the conviction may usually be shown to affect the credibility of the witness. (Greenl. Ev., § 373; 1 Bouv. Law Dict. 1028.) This policy obtains in Kansas, and to prevent the baffling of justice it is expressly provided that the disability of infamy is removed as to civil cases. While that provision does not extend or apply to criminal cases, it is evident from the legislation on the subject that it was not intended that anything short of infamous punishment should take away the civil rights of the convict or incapacitate him as a witness. The right to testify is within the control of the legislature, and the tendency appears to be to open the doors and give parties the benefit of any testimony that is available.
Under the general rule and apart from the statute, the test of infamy is the punishment which might be inflicted, but our statute modifies that and makes the punishment actually inflicted the criterion. In The State v. Howard, 19 Kan. 508, as we have seen, this court held that imprisonment in the penitentiary disqualified the convict as a witness. In consonance with this view and as indicating the legislative purpose, the statute expressly provides that a sentence of confinement at hard labor for a term of years suspends the civil rights of the person sentenced. (Gen. Stat. 1897, ch. 100, § 376; Gen. Stat. 1889, ¶ 2574.) Imprisonment at hard labor has always been deemed infamous punishment, and under the statutes the civil rights of a convict are not lost except by a sentence actually imposing such punishment. Under the succeeding sections of the same chapter provision is made for removing the disability by a pardon by the gov-. ernor; and there is a' further provision that the disability of one who has committed his first offense while within the age of sixteen years is removed, and his competency restored by the expiration of the term of imprisonment to which he has been sentenced. By another provision the governor is authorized to pardon any person confined in the state penitentiary for the purpose of restoring him to civil rights without notice and within ten days of the expiration of the term. (Gen. Stat. 1897, ch. 20, § 8; Gen. Stat. 1889, ¶ 3972.) It is worthy of note that no like provision is made to restore persons who have been confined in the reformatory to their civil rights. Evidently it was the view of the legislature that only those sentenced to imprisonment in the penitentiary lost their civil rights or needed a restoration to competency. Certainly no reason can be imagined why an old criminal who merits ignominious punishment at hard labor should be favored over a young boy convicted of his first offense, who is deemed a fit subject for reform, and who is held with but little restraint for an indeterminate period, and may be paroled at any time when the managers of the reformatory decide from his conduct that he is reformed and is again fit to assume the responsibilities of citizenship.
A legitimate deduction from the statutory provisions is that only those condemned to imprisonment at hard labor forfeit their civil rights, and that a restoration to competency of those confined in the reformatory was not deemed necessary, and hence no provision for it was made. The federal authorities relied upon to sustain the opposite view are based on the fifth amendment to the constitution, which prohibits a prosecution for a capital or otherwise infamous crime except by indictment of a grand jury. The leading consideration in those cases was not whether a convict was worthy of belief, but rather whether a person could be prosecuted upon a particular charge unless he was presented or indicted by a grand jury. Having regard for his protection and constitutional rights at the trial, it was held that if the statute under which he is prosecuted authorizes infamous punishment and the accused is therefore in danger of being subjected to such punishment, the offense for that purpose is to be deemed infamous. What the result of the prosecution may be cannot be foretold, and hence it must be decided when the prosecution is begun whether it shall be by indictment or information, and the courts logically determined that the matter of infamy for that purpose was measured by the charge and the statute. The New York case cited is hardly an authority, as the statute under which it was decided expressly provides that a person convicted of a felony was incompetent to testify, and the offense with which the convict was charged came clearly within the statutory definition of a felony. In this case the trial court, in ruling that Postlewaite was a competent witness and his testimony admissible, only followed an express decision of the court of appeals, which held that “ a commitment to the state reformatory does not deprive a person of civil rights or involve infamy to his person as does a sentence to the penitentiary." (In re Dumford, 7 Kan. App. 89, 53 Pac. 92.) In the opinion of the writer, therefore, Postlewaite was a competent witness, and his testimony was properly received. We all agree that if competent and his testimony were admissible there was abundant evidence to sustain the verdict.
The other objections to the testimony are not deemed to be material, and we find nothing substantial in the objections to the rulings of the court in chai’ging the jury. For the ei’ror mentioned, however, the judgment will be reversed and the cause remanded for a new trial.
Dostejr, C. J., and Smith, J., concurring. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by appellee to recover damages for personal injuries suffered when the truck he was driving went into the excavated portion of a street being repaired by defend- and construction company, alleged to have been caused by defendants’ negligence in failing to have proper barriers or warning lights. Defendants appeal from a jury verdict for plaintiff.
Plaintiff’s evidence in support of allegations contained in his petition is as follows: Plaintiff, a man thirty-seven years of age, was engaged in a partnership business with his wife in the sale of janitor’s supplies. He traveled as a salesman over the west three-fourths of Kansas, operating the supply business from a half-ton pickup truck in which he kept his supplies. The truck was owned by his wife. The partnership had been in existence since February, 1947.
That on and prior to September 22, 1947, defendants — a partnership doing business as Globe Construction Company — were engaged under proper authority with the city of Wichita, Kan., in preparation of Garland streets for paving between Eighteenth and Twentieth streets, that portion being known as the 1900 and 2000 blocks. Defendants had commenced to excavate the west half of Garland street between Eighteenth and Nineteenth streets known as the 1900 block, the excavated portion commencing at Eighteenth street and extending north towards Nineteenth street and ending 200 feet south of Nineteenth street.
At about midnight on September 22, 1947, plaintiff was proceeding south on Garland street and when he reached the intersection of Nineteenth street, he observed an unlighted barrier extending across the west half of Garland street, thereby leaving the east half of Garland street open to traffic. He observed a cár coming towards him from the south on the east side of the street. He shifted his truck to second gear, retarded its speed to twenty miles, turned his truck to the left and east side of Garland street and around the unlighted barrier so that the car approaching from the south could pass him and proceed on north. Plaintiff’s truck proceeded on south in second gear about 100 feet at which time he observed an unlighted and unbarricaded excavation on the west side of Garland street, fifteen feet ahead of him. He attempted to turn his truck sharply to the left towards the east side of Garland street but the right front wheel of his truck engaged a portion of the excavated part of the street causing him to lose control of the truck and it turned over on its top in the excavated portion of the street, injuring plaintiff. The night was clear but dark. There were no lights anywhere in the area and no signs or warnings either at the north end or east side of the excavated portion of the street, the east half of the street having been left open for traffic and so used. Evidence disclosed that the distance between the barricade at Nineteenth street and the excavated portion was from 100 to 200 feet. Two police officers were called to the scene immediately after the accident and they testified there were no burning lights of any kind and no barricades at the excavation; that they attempted to light the unlighted lanterns at the Eighteenth and Nineteenth street barricades, but they would not burn. They returned to the city yards, obtained lanterns and placed them at the barricades and at the excavated portion of the street as a warning to street travelers.
Testimony of plaintiff’s doctor disclosed that plaintiff suffered a sacroiliac sprain; that he suffered from shock, an abrasion of the left elbow, arm and shoulder; that he had some torn muscles and abrasions to the right knee; injury to his hip, and a strained or torn muscle. The doctor prescribed light treatment and a sacroiliac belt; and further testified he had given him light treatments; that lifting objects aggravated his condition; and that, in his opinion, plaintiff would never fully recover. He suggested that plaintiff try light work and do no heavy work for at least a year; thought he was slowly improving; and stated his doctor bill to date including the sacroiliac belt was $200. Defendants’ doctor examined plaintiff in October, 1947, and testified that there appeared to be considerable muscle spasm preventing movement of plaintiff’s spine, and also considerable tenderness under pressure in the lower part of the back. X rays showed a strain in the dorsal portion of the spine, the lumbo portion of the spine, which was the result of muscle spasm; and that he had a permanent injury to his back requiring further treatment.
As to plaintiff’s loss of earnings during his disability, plaintiff testified that by reason of a tornado damaging his home he lost all his records and papers pertaining to the income from his business as a salesman and partner in the janitor supply business including his income tax report, but that his best recollection was that his average daily income was approximately $25. No further evidence was tendered as to his daily profits.
The plaintiff rested his case and defendants interposed a demurrer on the ground that the evidence failed to disclose facts sufficient to support the allegations contained in plaintiff’s petition and for the further reason that the evidence shows plaintiff to be guilty of contributory negligence as a matter of law, which is the basis of defendants’ first assignment of error.
We shall first consider whether the demurrer to the evidence should have been sustained. In so considering, we will not weigh evidence, and will give the evidence of the plaintiff a liberal construction, resolving all doubt against defendants. Where reasonable minds might reach a conclusion in favor of plaintiff, the demurrer should be overruled. (Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538; Langston v. Butler, 165 Kan. 703, 199 P. 2d 190; Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923; Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669; Smith v. Kansas City, 158 Kan. 213, 146 P. 2d 660.) A review of the evidence discloses that defendants contracted to excavate and pave a public street. According to the nature of the task it was their duty to warn the public of the possible danger incident thereto. The construction was in a dark section of the city; inadequate warning signals were placed at the entrance of the area but none at or near the excavated part thereof. A motorist traveling upon the east side of the street left open for traffic would not have sufficient notice of the lurking danger.
Defendants further contend that since appellee saw the barrier at the intersection of Ninteenth and Garland streets, and slowed down and circumvented the barrier without any mishap, he should have been apprised of some sort of later danger because of the barrier at Nineteenth street, and that by continuing on with his truck in second gear and until the accident occurred, he was guilty of contributory negligence as a matter of law.
Plaintiff (appellee) does not contend that it was the failure of defendants to properly warn of the approach to the excavated area alone which led to the accident, but rather that act coupled with defendants’ failure to erect warnings at the north and east edges of the excavation which contributed to the injury.
This court has repeatedly stated that in determining whether a plaintiff is guilty of contributory negligence, when tested by demurrer or on motion for a directed verdict, the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions thereon. See, also, Smith v. Kansas City, supra; Jones v. McCullough, supra; and Hill v. Southern Kansas Stage Lines Co., supra.
Applying the foregoing rule, we hold the evidence established negligence on the part of appellants. The unlighted barrier at Nineteenth street covering the west half of Garland street may be considered as a warning, but the east half of the street being left open for travel and so used was certainly some invitation to the plaintiff to proceed with caution, which the evidence shows he did. He was not bound to anticipate pitfalls in the street that were hard to observe in the absence of lights or other warnings. In view of the evidence we cannot say as a matter of law that defendants were not guilty of negligence in failure to properly warn travelers by the use of barricades or lights, nor can we say that plaintiff was guilty of contributory negligence as a matter of law. The demurrer to plaintiff’s evidence was properly overruled.
Defendant’s evidence will not be summarized as it does not refute plaintiff’s evidence but in many instances corroborates plaintiff’s contentions. However, defendants called plaintiff’s wife as a witness. She testified as to their marital relation and that she. was engaged in business with plaintiff in selling janitor’s supplies as a family business. She identified Exhibit A as her 1947 income tax return for both federal and state. The return reflected a gross income of $1,750 from selling brushes, and a total cost of goods sold plus operating expense in the sum of $1,926.77, indicating a loss in the business operation for the year 1947 of $176.77. Defendants offered the tax return in evidence but on objection by plaintiff, the court refused to admit it.
The case was submitted to the jury which, after deliberating, returned its general verdict as follows:
“We, the Jury, impaneled and sworn in the above entitled case, do upon our oath find the issues for the plaintiff, Owen Bruce McCracken and assess the amount of his recovery in the sum of $5550.00.
“Date of this verdict November 7, 1949.
“S/ Jos. B. Matz Foreman”
At the same time the jury returned into court its answers to special interrogatories submitted by the court as follows:
“Q. 1. Did anything obstruct the plaintiff’s vision between the time he drove around the barricade at the north end of the Nineteen Hundred Block on Garland Street and the time when he drove his car into the excavated part of Garland Street? A. No.
“Q. 3. Did the plaintiff correlate the speed of his car with the clear or unobstructed distance between the time he passed the barricade and the time when he drove his car into the excavated portion of the street? A. Yes.
“Q. At what rate of speed did the plaintiff drive his car between the barricade and the excavated portion of the street? A. Approximately 20 miles per hour.
“Q. 5. Did the plaintiff drive his automobile at a speed greater than was reasonable and prudent under the conditions then existing and particularly between the time he passed the barricade and the time he drove his car into the excavated part of the street? A. No.
“Q. 6. Did the plaintiff between the time he passed the barricade and the time he drove his car into the excavated part of the street drive his automobile in such a manner that he could have stopped it'within the range of his vision? A. Yes.
“Q. 7. What was the distance between tire barricade at the north end of tire Nineteen Hundred Block on Garland Avenue and the north end of the excavated part of the west half of Garland Avenue? A. Approximately 200 feet.
“Q. 8. From the time the plaintiff passed the barricade until he drove his car into the excavated part of Garland Avenue, was he guilty of negligence which was a direct, proximate or contributing cause of the accident and injuries of which he complains? A. No.
“Q. 9. Were the defendants guilty of negligence that was a proximate or direct cause of the accident and injuries of which the plaintiff complains? A. Yes.
“Q. 10. If you answer the foregoing question in the affirmative state in detail the act or acts of negligence of which you find the defendants guilty? A. No warning lights, improper and inefficient barricades. No warning signs, at 18th and 19th Streets. Failure to maintain lights. No warning lights or barricades at the excavated area.
“Q. 11. If you find for the plaintiff then state how much you allow the plaintiff as damages for:
“a. Injuries and pain and suffering? A. $3,200.00.
“b. Loss of profits or remuneration from business? A. $2,000.00.
“c. Medical expenses? A. $350.00.
“S/ Jos. B. Matz, Foreman.”
Defendants’ motion for judgment on the answers of the jury to the special interrogatories notwithstanding the general verdict of the jury was overruled; to this ruling defendants (appellants) assign error.
Appellants admit that the answers to the first seven interrogatories are sustained by substantial evidence, and from a careful review of the evidence we find that answers to the remainder of the interrogatories are sustained by ample evidence with the exception of the answer to lib, hereinafter discussed. Defendants contend, however, that the jury’s answers to the first seven interrogatories convict plaintiff of contributory negligence and urge the same argument as was urged on their demurrer to the evidence at the close of plaintiff’s case. Inasmuch as we have previously disposed of that argument, we will not reiterate it here. The question of contributory negligence was for the jury. Defendants urge that the answer to interrogatory No. 8 was but a conclusion. It is an elementary rule of law that the jury’s answers to special interrogatories are to be harmonized with each other and with the general verdict if possible. The jury’s answers to special interrogatories Nos. 9 and 10 find defendants guilty of negligence which was the direct and proximate cause of plaintiff’s injury and the general verdict in favor of plaintiff exonerated him of any contributory negligence. (Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 86 P. 2d 583; and cases cited in Hatcher’s Kansas Digest, Trial, sec. 295.) A close analysis of the answers to the special interrogatories indicates to us no inconsistency with each other or with the general verdict.
Did the trial court err in permitting the plaintiff to testify over the objection of the defendants, from memory, concerning his average daily income on and immediately prior to the date of the accident? The plaintiff in his petition sued for an amount of $2,075 as loss of income which was of the reasonable value of $25 .per day. The plaintiff at the trial attempted to prove his daily income by stating that his best recollection was that his income approximated $25 a day in the business in which he was engaged on the date of the accident. Objection was made on the part of defendants to plaintiff’s testifying from memory or recollection concerning his average daily income. The court made inquiry of the plaintiff as to whether or not he had kept a record and. had the record available. Although the plaintiff was interrogated concerning his records he was not able to disclose what the records showed with respect to his average income. Upon a more detailed inquiry of the plaintiff, by counsel for the defendants, concerning his records, the plaintiff explained that about a year before the trial of this case a tornado blew the roof off plaintiff’s house and that as the result thereof he lost a lot of valuable papers, particularly copies of his income tax reports, but nowhere did he explain that the records which he lost were a part of those which he kept concerning his income. Notwithstanding the objections of counsel for the defendants to the plaintiff’s testimony, the court permitted the plaintiff to testify from his recollection that his average daily income on September 22, 1947, was approximately $25 a day. Plaintiff’s testimony does not disclose the period of time prior to September 22,1947, during which his income was $25 a day and there is nothing in the record to indicate whether this was gross or net income or whether it was partnership or personal income.
The result of the foregoing testimony on the part of the plaintiff, uncorroborated by any other evidence, was that the jury awarded the plaintiff damages in the amount of $2,000 arising by loss of renumeration from business. This court has consistently held that damages cannot be established by statements of a witness based on mere opinion without regard to specific facts or knowledge upon which their opinions were based. Damages cannot be based on mere conjecture or speculation. See Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717. Before one may recover damages for loss of profits to an established general business, occasioned by the wrongful acts of another, it must be made to appear the business had been in successful operation for such period of time as to give it permanency and recognition, and that it was earning a profit which may reasonably be ascertained or approximated. See States v. Durkin, 65 Kan. 101, 68 Pac. 1091. The prospective earning capacity that plaintiff lost as a result of tins accident is too remote, speculative and uncertain as based on his mere opinion to be recoverable.
Next, did the trial court err in refusing to admit in evidence, when offered by the defendants, a copy of the federal income tax return of the wife of the plaintiff? The plaintiff testified that the pickup truck which he was driving on the occasion of the accident was owned by his wife; and that he and his wife owned the business together. Also the plaintiff testified that he and his wife started in this business in February, 1947, and the accident happened in September, 1947. The plaintiff, as previously shown, testified that about a year before the trial of this case he lost all copies of his income tax return as the result of a tornado blowing the roof off his house. Mrs. McCracken testified that she was the wife of the plaintiff in the case, owned the truck which the plaintiff was driving on September 22, 1947, and that she was engaged in the business, with her husband, in the selling of these supplies, and that Exhibit A, identified by her as a true copy of her 1947 income tax return, reflected the income from the business in which she and her husband were engaged at and prior to the plaintiff’s accident; that she filed the original with the federal government and the state of Kánsas. The court sustained the, objection of counsel for the plaintiff to the introduction of this exhibit in evidence. It will be observed by examination of the exhibit that the business of selling brushes and janitor supplies in which the plaintiff and his wife were engaged in 1947 and from which the plaintiff testified, over the objection of the defendants, that his average daily income was $25, not only lost $176.77, but that the partnership paid the plaintiff nothing except the sum of $5 a day for 175 days or a total sum of $875 for hotel, meals and ordinary traveling expenses. The jury of course lost the benefit of this documentary evidence and returned a verdict in favor of the plaintiff for loss of compensation by the plaintiff, after the accident, based upon his testimony concerning his average dailv income on September 22, 1947.
It is true that plaintiff’s wife was not a party to this litigation; however, in view of the lost records pertaining to the partnership business, the income tax return of the wife reflecting the profits and loss of said business is some evidence and relevant to the issues involved. Moreover, it was admissible as evidence going to the weight to be given plaintiff’s testimony. We are of the opinion that under the facts in the instant case the trial court committed error in not admitting defendants’ proffer of Exhibit A, the income tax return.
In view of what has been said, we approve the answers to the first ten special interrogatories and that part of special interrogatory No. 11 showing an allowance of $3,200 for injuries and pain and suffering and $350 medical expense, and the general verdict to that extent. We cannot approve the answer to special interrogatory No. lib showing an allowance of $2,000 for loss of profit or remuneration from business.
It is unnecessary to retry all the issues in order to determine the issue of loss of profit from business. Those issues have once been determined in a trial before the court and jury and finally determined in favor of plaintiff. (G. S. 1935, 60-3004; Carlgren v. Saindon, 129 Kan. 475, 283 Pac. 620; Van Pelt v. Richards Paint & Paper Co., 132 Kan. 581, 296 Pac. 737; Niebauer v. Bivins, 149 Kan. 260, 87 P. 2d 619.) We feel constrained to grant a new trial on the one issue of plaintiff’s loss of profit or remuneration from his business by reason of the injury received.
The judgment of the court below is reversed in part with directions to set aside the answer to special interrogatory No. lib and reduce the general verdict in that amount and to let the answers to the remaining special interrogatories stand, and on a new trial to submit the case on the sole issue as to the amount plaintiff is entitled to recover for loss of profit or remuneration from business by reason of the injuries sustained.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal by the defendant in an action to recover damages to personal property and for personal injuries sustained by plaintiff in a collision of motor vehicles.
The jury failed to agree and was discharged. The sole issue presented is whether the trial court erred in overruling defendant’s demurrer to plaintiff’s evidence based on the ground such evidence disclosed plaintiff was guilty of contributory negligence as a matter of law.
On December 4, 1948, and at about 7:00 p. m. plaintiff, Mitchell Garrison, was driving his 1929 Ford two-door sedan in a southerly direction on U. S. highway 69, a black-top road. At a point approximately one and one-half miles south of the city of Columbus plaintiff made a left turn onto a country gravel road along which he lived. Defendant was driving a Ford V-8 pickup truck in the same southerly direction. When plaintiff was approximately 150 to 200 feet from the intersection he noticed through his rear vision mirror the lights of a car approximately a quarter of a mile behind him. Plaintiff was then traveling approximately twenty to twenty-five miles per hour. He lowered the left window, slowed down to around ten miles per hour, put his hand straight out for a left turn and pulled toward the center of the road from the west side.’ As he made the left turn he was traveling approximately five miles per hour.
Highway 69 was a black-top road eighteen to twenty feet wide with shoulders on each side making the total road about thirty feet wide. Plaintiff’s car was just beyond the black-top after he turned east onto the gravel road before he was struck by defendant’s truck. Defendant’s truck scraped the side of a culvert on the east side of the road and plaintiff saw the sparks fly. There were skid marks off the pavement on the left or east side of the road for a distance of sixty feet. The skid marks led to defendant’s truck. Plaintiff had his hand out for the turn for a period of ten or fiteen seconds. He pulled his hand back a second or two as he started to make the turn. After the accident plaintiff inquired of defendant what he was doing off the highway. Defendant stated he did not know there was an intersection at that point. Plaintiff’s car had good tail and headlights and they were all on at the time in question. Defendant’s car lights shown through the back window of plaintifFs car while plaintiff continued to have his hand out for a left turn. If plaintiff had looked through the rear vision mirror again before turning he might have seen the circumstances as they existed immediately before he started to turn to the left. Plaintiff admitted he did not look again to see how far away defendant’s truck was for the reason he had his hand out for a left turn.
Appellant argues appellee’s failure to look back again and make certain he could turn with safety constituted contributory negligence as a matter of law and barred recovery. It is, of course, dangerous to make a turn into the path of a closely oncoming car. Does it, however, constitute contributory negligence, as a matter of law, to make a turn irrespective of the circumstances? It would appear that, absent a statute, reasonable care in making a turn is required. We have a statute on the subject. Does it modifiy the rule with respect to the requirement of exercising reasonable diligence in addition to the giving of a signal? G. S. 1947 Supp. 8-547 reads:
“(a) No person shall turn a vehicle from a direct course upon a highway unless' and until such movement can be made with reasonable safety, and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement, or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement, (b) A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning. . . .”
Appellant stresses subdivision (a) of the statute and cites cases from a few other jurisdictions based on similar statutes in which it was held the giving of a signal alone is not the sole test of compliance with the statute; that one making such a turn is also required to observe due care to see his movement may be made with safety.
Appellee gave the required signal. The question here is whether it can be said, as a matter of law, appellee did not use reasonable care in addition to the giving of a signal before making the turn? Appellee had given the signal for a period of ten or fifteen seconds and while traveling 150 to 200 feet before he started the turn. During this period he was pulling towards the center of the road from the west. The lights of the oncoming vehicle were on appellee’s car and it must be assumed he saw what appellee was doing.
Can it be said, as a matter of law, appellee was negligent in believing appellant’s car would not be upon him while making the turn and in also believing appellant, in the exercise of due care, would observe appellee was preparing to make a turn? Assuming for the moment, and solely for the purpose of argument, these questions could be resolved against appellee, would that fact determine appellee’s negligence as a matter of law under the facts in this particular case?
Appellee’s car was not struck on the black-top. His car had cleared the black-top. Although it had not progressed far off the black-top it had cleared it. It appears appellant’s truck would not have struck appellee’s car had his truck remained on the black-top. Under all these facts we think we would not be justified in concluding appellee was guilty of contributory negligence as a matter of law. The evidence presented a state of - facts on which the minds of persons reasonably could differ. That is precisely why the jury could not agree in this case and was discharged. Where reasonable minds may reach different conclusions on the evidence the case must be submitted to the jury. (Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923.)
Another pertinent principle is here involved. Appellant had no right to pass appellee’s car within 100 feet from the intersection. (G. S. 1947 Supp. 8-540.) Under the facts it must be assumed appellant knew appellee was preparing to make a left turn. Appellee had a right to assume appellant would observe the foregoing rule of law in view of appellant’s notice of the intersection afforded by appellee’s conduct. Appellee had the right to assume appellant would observe this rule of law until appellee had knowledge to the contrary. (Sullivan v. Johnston, 164 Kan. 386, 390, 190 P. 2d 417; Gabel v. Hanby, 165 Kan. 116, 193 P. 2d 239, and cases therein cited.) There is no evidence appellee had such knowledge or that in the exercise of reasonable diligence he should have been apprized of such fact.
The order overruling appellant’s demurrer is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action against various defendants to quiet title to certain lands.
The action was tried by the court on an agreed statement of facts. The only defendants now involved are Standish Hall, trustee, and The First National Rank in Wichita, a corporation, trustee. The title of the plaintiff was quieted as to all defendants except the two last mentioned. Judgment was rendered in favor of those two defendants pursuant to their respective claims based on certain written instruments executed and delivered by former owners of the fee title, and plaintiff, the present owner of the fee title, appeals.
It is agreed the plaintiff, Charles F. Lathrop, is the present owner of the fee title to the lands involved subject to such interest as the two mentioned defendants may have in the lands, if any.
The primary question presented is the nature, character and effecl of the written instruments pleaded and relied on by these two appellees. For convenience appellees will be referred to as Hall and as the bank. Although neither Hall nor the bank was a grantee in the original instruments involved it is admitted they are now trustees of whatever right, title or interest may have been granted thereby. We shall first set forth the pertinent parts of the two conveyances on which Hall relies. One of them reads:
“This Agreement made and entered into this 22nd day of April, 1919, by and between Frank E. Eyestone and Mamie E. Eyestone, his wife, assignors, parties of the first part and The Guarantee Title and Trust Company, assignee, party of the second part.
“Witnesseth, that whereas, on the 17th day of Sept. 1918, a certain oil and gas lease was made and entered into by and between the said Frank E. Eyestone and Mamie E. Eyestone his wife, lessors, and J. A. Crawford, lessee, wherein said lessors leased to said lessee for himself his heirs and assigns for oil and gas mining purposes for the terms designated therein and under the conditions thereof, the following described land located in Butler County, Kansas, to-wit:
“The North Half of the Southwest Quarter (NK of SWfi) and the Southwest Quarter of the Northwest Quarter (SW& of NWK) of Section Eight (8), in Township Twenty-three (23), Range Four (4) East of the Sixth P. M. and which said lease is recorded in Book Misc. 41 page 53 in the office of the Register of Deeds of Butler County, Kansas, and provides that the lessee his heirs, and assigns, shall under the conditions of the premises depart of all oil produced and saved from said leased land and shall pay to the lessor, his heirs or assigns, one-eighth (hs) of all gas produced and saved from said leased land or in lieu thereof said one-eighth Qá) of the gas, $200.00 for each gas well drilled thereon where gas only is found while the same is being used off the premises.
[Here appears paragraph of assignment to The National Refining Company.]
“Now, Therefore, Be It Remembered, That, we Frank E. Eyestone and Mamie E. Eyestone, his wife, the undersigned, in and for the consideration of One Dollar ($1.00) and other valuable consideration to us in hand paid by The Guarantee Title & Trust Company, the receipt of which is hereby acknowledged have sold and by these presents do sell, assign and deliver to the said Guarantee Title and Trust Company, their successors and assigns, an undivided one-fourth (hi) interest in and to all of the oil and gas right, title and claim, we now own or which we may hereafter be entitled under and by virtue of the above and described aforesaid lease or any oil and gas lease existing or which may hereafter exist upon the above described land or any part thereof, including all of the oil and gas, rent and royalties now accrued or accrue hereafter, also a perpetual and irrevocable right, privilege and license to enter upon said land or any part thereof and prospect for and drill wells for oil and gas therein or thereon, and also the right to use and the possession of so much of said premises as may be necessary to enable the assignee herein, their successors or assigns, to carry out the purpose and provisions of this grant, provided that this clause does not in any way interfere with the lease on the above described premises.
“Provided, That the grantors herein their heirs or assigns upon payment to the grantee herein; its successors or assigns of an amount equal to three-fourths (?i) of the expense and cost of producing and disposing of such oil and gas, shall thereupon forthwith be entitled to and shall receive from said grantee, their successors or assigns, an equal amount to three-fourths (%) of the net profits arising from the sale and disposition of said oil and gas as aforesaid, but in any event the grantor is not to be held for any expense in the last clause, unless it is taken from the oil and gas produced on said premises.”
The other instrument relied on by Hall, dated May 5, 1919, reads in part:
“Assignment of Royalty
“Know All Men by These Presents: That Ethel Johnson, a single woman, and George Johnson, a widower, of the first part, in consideration of One Dollar, and other valuable considerations, the receipt of which is hereby acknowledged, have granted, bargained, sold and conveyed and do by these presents grant, bargain, sell, and convey unto W. H. Stanley of Wichita, Kansas, party of the second part, an undivided one-fourth (X) in a certain oil and gas mining lease, executed by said Ethel Johnson, a single woman, and George Johnson, a widower, to E. E. Johnson, the North Half of the Northwest Quarter (NX of NWX) of Section Nine (9) Township Twenty-three (23) South, in Range Four (4) East of the Sixth Principal Meridian, in Butler County, Kansas, containing eighty acres, more or less according to government survey, which lease is dated October 30th, 1918; also
“An undivided one-fourth (X) interest in any and all bonuses received for oil and gas lease or leases hereafter executed by first parties or their assigns, upon said real estate, or any part thereof, and one-fourth (X) of the oil and gas royalties resewed to the lessors in any such lease or leases hereafter executed; it being expressly understood and agreed that when said present oil and gas lease terminates parties of the first part, or their assigns, shall have the full and exclusive right to execute another oil and gas lease or leases as herein provided; which one-fourth (X) of the royalties shall not be less than one-sixteenth (1/16) of the production of the lease.” (Our italics.)
The pertinent part of the conveyance on which the bank relies reads:
“Declaration of Trust
“This Agreement made and entered into this 12th day of June, 1919, between Frank E. Eyestone and Mamie Eyestone, his wife, parties of the first part and The Prudential Trust Co., a corporation, organized under the laws of the State of Kansas, party of the second part, hereinafter called the Trustee.
“Witnesseth, That the parties of the first part in consideration of One Dollar to them paid by the second party, the receipt whereof is hereby acknowledged, do by these presents, grant, bargain, sell and convey to the party of the second part an undivided one-half in a one-eighth oil and gas royalty reserved to them on the North Half of the Southwest Quarter of Section 8, and the Southwest Quarter of the Northwest Quarter of Section 8, in Township *23, Range 4 East of the 6th Principal Meridian, in Butler County,. Kansas, in a certain oil and gas mining lease, executed by the parties of the first part to The National Refining Co., and now of record in the office of the Register of Deeds of Butler County, Kansas; also an undivided one-half interest in any and all bonuses received from any oil or gas lease or leases hereafter executed by the parties of the first part or their assigns upon said real estate or any part thereof and one-half of the oil and gas, reserved to the lessors in any such lease or leases hereafter executed; it being expressly understood and agreed that when the said oil and gas lease terminates, the parties of the first part or their assigns shall have full and exclusive right to execute another oil and gas lease or leases on said premises, subject only to the rights of the second party to whom half of the bonus received and an oil and gas royalty of one-sixteenth of the oil and gas produced and saved from said premises.
“To Have and to Hold the Same, Unto the party of the second part in trust for the said Frank Eyestone and for the beneficiaries of this Trust as hereinafter provided.
"First:
“ ‘The aforesaid royalties and rights herein assigned to the Trustee shall be divided into six thousand units, each representing a one-sixth thousandth interest therein, which units shall be evidenced by certificates to be issued by the Trustee on the order of Frank E. Eyestone, his heirs or assigns.
“Second:
“ ‘The interest of each beneficiary shall be evidenced by one or more certificates to be executed by the Trustee in the following form:
“Eyestone’s Oil and Gas Royalty Trustee’s Certificate
“ ‘This is to certify that_is the owner of_six-thousandths interest in a one-sixteenth oil and gas royalty on the following described premises, situate in the County of Butler and State of Kansas, to-wit: [Description of property same as previously shown.] . . .
“Fourth:
“ ‘Such units shall he deemed personal property and neither the beneficiary nor in case of his death, insolvency or bankruptcy shall his representative or any other person be entitled to partition or to an accounting but the ownership of such units shall be by succession.’ ” (Our italics.)
Hall contends the first two instruments above set forth constitute grants of oil and gas in place. The bank makes the same contention relative to the last instrument, on which it relies. The trial court sustained both contentions. The appellant owner of the fee title contends none of the three instruments constitutes such a grant and that each of them is merely a conveyance of an interest in royalty, oil and gas produced and saved.
Before examining the instruments it may be helped to restate a few well established principles.
As we have frequently stated the term “royalty” is often rather loosely and inaccurately used by men in the petroleum industry, those dealing in oil and gas holdings and at times by attorneys. Some persons refer to oil and gas in place as royalty. Others refer to royalty as the landowner’s share in production. We have, therefore, repeatedly held the true nature and character of the instrument is not to be determined by the name or label attached thereto but by its intent as reflected by the terms, the contents thereof. A few of such cases are Serena v. Rubin, 146 Kan. 603, 72 P. 2d 995; Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844; Rutland Savings Bank v. Steele, 155 Kan. 667, 127 P. 2d 471; Dennett v. Meredith, 168 Kan. 58, 64, 211 P. 2d 117. See, also, annotation in 4 A. L. R. 2d 492, 496.
A mineral deed is one which makes a severance, from the fee, of a present title to minerals in place. It is actually a realty conveyance. (Richards v. Shearer, 145 Kan. 88, 64 P. 2d 56; Rathbun v. Williams, 154 Kan. 601, 121 P. 2d 243; Hickey v. Dirks, 156 Kan. 326, 327, 133 P. 2d 107.) On the other hand “royalty” in its ordinary meaning is that part of oil and gas payable to the lessor by the lessee out of oil and gas actually produced and saved. It is the compensation to the lessor provided in the lease for the lessee’s privilege of drilling and producing oil or gas. It does not include a perpetual interest in and to the oil and gas in place. (Bellport v. Harrison, 123 Kan. 310, 255 Pac. 52; Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463; Rutland Savings Bank v. Steele, supra; Rathbun v. Williams, supra.) It is not uncommon to find “royalty” shortly defined as “a share” in production “paid.” (Anno. 4. A. L. R. 2d 492, 497.) It is personal property. (Hickey v. Dirks, supra, and cases therein cited.) The lessee’s interest in the oil produced, commonly seven-eighths or whatever the lease provides, is called the working interest. (Robinson v. Jones, 119 Kan. 609, 240 Pac. 957; Davis v. Hurst, 150 Kan. 130, 90 Pac. 2d 1100.)
In the Bellport case, supra, it was held:
“The ordinary meaning of the word ‘royalty’ in an existing oil and gas lease cannot be enlarged by proof of usage and custom so as to include a conveyance of oil and gas in place in the land and the perpetual right to go upon the premises to explore for and produce oil and gas.” (Syl. f 2.)
The cardinal principle or test to be applied in the interpretation of such instruments, as in others, is the intention of the parties. (Rutland Savings Bank v. Steele, supra.) Although all parts of the instrument are to be considered the granting clause is, of course, paramount in determining what interest was intended to be granted. (Hickey v. Dirks, supra, p. 330.)
No dispute of any consequence actually exists among the parties concerning the soundness of these long established principles and guides. Where they part company is in their application.
We turn to the first instrument set forth. While it may be debatable whether the first part of the granting clause constitutes a grant of one-fourth interest in and to all of the landowner’s right and title to the oil and gas in place which they then owned or whether that part of the instrument alone- constitutes merely a grant of an interest in oil or gas produced and saved, we must ascertain the intent of thé instrument as disclosed by all provisions within its four corners.
The clause included a grant of an interest in rent. In the oil and gas industry rent is ordinarily money which a lessee pays to the owner of land in lieu of drilling. The provision pertaining to rent is in harmony with a grant of an interest in and to oil and gas in place but being a grant of an interest in money, personal property, it is not conclusive of intent to make a grant of oil and gas in place. It is a factor to be considered together with others in determining intent.
It will be observed the granting clause also conveyed, "... a perpetual and irrevocable right, privilege and license to enter upon said land . . . and drill wells for oil and gas . . .” provided it did not interfere with the existing oil and gas lease on the premises. Long prior to the trial the Crawford oil and gas lease, existing at the time this instrument was executed, had been released. Two other oil and gas leases executed after the release of the Crawford lease were also terminated and at the time of trial there was no oil or gas lease or production on the premises. Under these conditions, we think the grantee had a “perpetual and irrevocable right” in and to one fourth of whatever oil and gas might exist in and under the land. That conclusion is fortified by the proviso of the granting clause under which the grantors might, under the conditions therein stated, receive three fourths of the net profits of the sale of the oil and gas. That provision, it appears, can be harmonized only with the intent of the grantors to convey the other undivided one-fourth interest of the oil and gas in place to the grantee. Such a grant conveyed an interest in the land.
Since the grantee had an interest in the land the court properly refused to quiet the landowner’s title with respect thereto. The trial court concluded Hall had a one thirty-second interest in and to the oil and gas in place. It, apparently, but we think erroneously, calculated that fractional interest on the theory of one fourth of one eighth, that is one fourth of the grantors’ royalty, which would be one fourth of the grantors’ share in production. Hall, however, has not appealed from the judgment determining the extent of his interest in and to the oil and gas in place and we fail to see how we can disturb the extent of his interest as determined.
This brings us to the second instrument set forth. Here the interest conveyed is “. . . an undivided one-fourth (M) in a certain oil and gas mining lease. . . .” Under the mining lease referred to the grantee, Stanley, was entitled to one fourth of the oil and gas “royalties reserved to the lessors.” That meant the grantors conveyed one fourth of one fourth or one sixteenth of the oil and gas produced. This was an interest in personal property and not title to oil and gas in place.
It was stipulated the oil and gas lease on the land had been terminated and that no other lease was now in force and effect.
In determining whether the grant was one of oil and gas in place, a conveyance of realty, it must be observed it was the lessors who expressly reserved the exclusive right to execute a new lease on the land on termination of the existing lease. That provision did not recognize any right of the grantee in the realty. It also was provided that under a new lease the grantee’s interest should not be less than one sixteenth of the production. What the purpose was for using the words “not less” than one-sixteenth of the royalties is not entirely clear. Its purpose may have been to recognize the grant of an interest in bonuses. In any event the interest granted was an interest in personal property. The same paragraph contains its own recognition of the meaning of the word “royalties” in that it denominates the interest conveyed as one sixteenth of the production under a new lease.
Another factor worthy of note is the apparent interpretation W. H. Stanley, the grantee, placed thereon. The assignment of his interest to another reads:
“All of the undivided one-fourth interest in the one-fourth oil and gas royalty reserved to Ethel Johnson, a single woman, and George Johnson, a widower, in a certain oil and gas naming lease executed by said Ethel Johnson, .and George Johnson, widower, to E. E. Johnston. . . .” (Our italics.)
The appellee, Hall, reminds us this instrument granted a one-fourth interest in bonuses received by the grantors and that a bonus for a lease ordinarily passes to the owner of land. It is true that in a case holding an instrument did not constitute a conveyance of oil and gas in place we said that if an instrument conveys an interest in minerals in place the grantee is normally entitled to a corresponding share in such cash rentals and bonuses. (Hickey v. Dirks, supra.) From that decision, however, it does not follow that a grant of an interest in bonuses necessarily takes precedence over all other considerations and compels a conclusion it was a conveyance of oil and gas in place when the instrument considered in its entirety clearly shows it was intended to be only a grant of an interest in personal property, reserved to the lessor. It is also well to remember a grant of bonuses, or an interest therein, is ordinarily a grant of money, personal property, and not of reality. In principle a grant of an interest in bonuses is similar to a grant of an interest in rents, previously discussed herein. It is a proper factor to be considered in determining the intent of the grantor but it is not conclusive on the question of the nature and character of the grant. We are forced to the conclusion this instrument did not constitute a conveyance of oil and gas in place but a grant of an interest in personal property.
What about the third instrument on which the bank relies? Its general nature and character is so similar in pertinent terms to the second instrument that reiteration of what has been said concerning the latter is unnecessary. In order to avoid confusion of thought it may be well to specifically direct attention to the fact the same grantors, Cline V. Eyestone and his wife, made the grant in both the first and third instruments and that both grants pertain to oil and gas rights on the same land. It also may be helpful to state again the lease existing on this land at the time this third instrument was executed had terminated, subsequent leases thereon had been released and there was no producing oil or gas well on the land at the time of trial. This third instrument, as the second instrument, did not constitute a grant of oil and gas in place.
Hall, however, directs attention to the stipulated fact that he had executed a subsequent oil and gas lease, now terminated, on this land to one John T. Crane on April 27, 1936, before this appellant landowner acquired his title to the land in May, 1946, and that there was production under such lease until June or July, 1947. It is the bank and not Hall which claims rights by virtue of this third instrument. The right to make a new lease was expressly reserved to the grantors under both the second and third instruments. Whatever right Hall had to make a new lease on this land was acquired by virtue of the first instrument which we have concluded granted rights to oil and gas in place. Under that instrument the grantors did not reserve the exclusive right to execute a new lease.
We now reach the appellant landowner’s next contention. It relates to the provisions in the instruments which purport to grant an interest in royalties, rents and bonuses on other oil and gas leases which might be executed in the future. Appellant contends those covenants are personal covenants of the prior owners of the land, that they do not run with the land and hence do not bind him, a subsequent owner of the fee title.
As previously stated it is stipulated the lands described in all three conveyances are now free and clear of all oil and gas leases and there is no production on any of them. Appellant concedes such covenants, even as to future leases, would be binding on the owners of the land who made them but contends they are not binding on him, 'a subsequent fee title owner. It has been held an assignment by the fee title owner of an interest in royalties, rents and bonuses that accrue under an existing lease, and a lease which “might be executed” in the future is valid between the parties thereto, both as to the existing lease and a subsequent lease where made by the same landowners. (Miller v. Sooy, 120 Kan. 81, 242 Pac. 140.) In the same case it was held that construing the instrument as being binding only with respect to the leases executed by the then landowners, and not as running with the land, the instrument was not subject to attack on the ground it violated the rule against perpetuities.
The first instrument in the instant case does not in its terms bind the “grantors, their successors and assigns.” Although the granting clause, in both the second and third instruments, does not provide that “We, the undersigned, for ourselves, our heirs and assigns” grant, etc., there is language in each of those two instruments which makes it appear it may have been intended to convey such interests under subsequent leases executed by the grantors, “or their assigns.”
We need not determine whether these instruments, or any of them, were intended to be binding on subsequent fee title owners. If such was the intention when would tire grant of such future interests vest? Appellant or future fee owners might never execute another lease. There is nothing in any of the instruments which imposes a duty on them to do so. Under the last two instruments, at least, the fee title owner would not be precluded from doing his own developing. (Miller v. Sooy, supra; Leydig v. Commissioner of Internal Revenue, 43 F. 2d 494, 496.) Moreover there is no limitation of time within which a future lease would be required to be executed, if one were actually executed. It is, therefore, wholly problematical when, if ever, such an interest under future leases would vest. Such a grant violates the rule against perpetuities, a rule against too remote vesting. In 41 Am. Jur., Perpetuities and Restraints on Alienation, § 24, it is said:
“One of the essential elements of the rule against perpetuities is that at the time the future interest is created, it must appear that the condition precedent to vesting must necessarily happen, if it happens at all, within the period prescribed by the rule. . . A possibility, or even a probability, that the interest or estate may vest within that time is not enough, for, it is said, the question of probabilities does not enter into the equation. If by any conceivable combination of circumstances it is possible that the event upon which the estate or interest is limited may not occur within the period of the rule, or if there is left any room for uncertainty or doubt on the point, the limitation is void.”
The foregoing statement constitutes the well recognized rule which is in harmony with our own decisions. (Klingman v. Gilbert, 90 Kan. 545, 548, 135 Pac. 682; Malmquist v. Detar, 123 Kan. 384, 255 Pac. 42; Beverlin v. First National Bank, 151 Kan. 307, 98 P. 2d 200; McEwen v. Enoch, 167 Kan. 119, 204 P. 2d 736.)
The trial court properly held appellant’s title should not be quieted insofar as interest in and to oil and gas in place, granted by the first instrument, is concerned, but it erred in refusing to quiet appellant’s title as against rights claimed under the second and third instruments. The judgment is, therefore, affirmed in part and reversed in part and remanded to the district court with directions to enter judgment in harmony with the views herein expressed. | [
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The opinion of the court was delivered by
Thiele, J.:
Plaintiffs appeal to this court from the ruling of the trial court sustaining a demurrer to a petition.
On June 14, 1948, the plaintiffs commenced an action to recover moneys from the defendants. Their amended petition contained two causes of action, only the first cause of action being involved in this appeal. It will be referred to hereafter as the petition.
For present purposes the allegations of the petition may be summarized. Plaintiffs alleged that they were the parents of Kenneth Carl Cory, who was killed in an airplane accident on June 14, 1946, in Rice county, while engaged in flying as a student oí the Troth Flying Service, a partnership composed of the defendants and engaged in the business of owning and operating airplanes for the purpose of giving flight instructions to students, and that Kenneth Carl Cory died intestate and left no surviving spouse, child or issue but did leave his surviving parents who are the plaintiffs; that no administation had been had on his estate; that administration was not necessary and that more than one year had elapsed since his death; that in April or May, 1946, Kenneth Carl Cory entered into a contract with defendants for flight instruction but plaintiffs did not know whether the contract was oral or in writing but pursuant to the contract Kenneth Carl Cory commenced training on May 13, 1946, and continued until his death on June 14, 1946; that prior to the time the contract for training was made. defendants represented to Kenneth Carl Cory that if he would enter into the contract “that his life would be insured for $10,000 against any accident which he might be involved in while training as a student of the Troth Flying Service, that said statements as to the insurance were made as positive assertions and with the intention that such statements should be relied upon and acted upon by Kenneth Carl Cory”; and in reliance thereon and believing that he and his heirs would be protected he made the contract to take flight training; that he signed papers which defendants represented would put the insurance into effect on his life in the event of his injury or death while flying as a student and that the papers signed designated his father and mother as beneficiaries. It was further alleged that plaintiffs had made demand upon the defendants for the proceeds of any insurance that may have been placed upon the life of Kenneth Carl Cory by the defendants but the defendants advised them there was no insurance coverage on Kenneth Carl Cory for loss of his life while taking training, and that since no insurance was placed upon the life of Kenneth Carl Cory by defendants, the statements of the defendants that it would be were false and fraudulent; that defendants knew or should have known they were false and fraudulent and that by making such statements the defendants intended to and did induce Kenneth Carl Cory to take flight instruction of them. Further allegations are that the fraud was not discovered until March 9, 1948, and that Kenneth Carl Cory was killed on June 14, 1946, while on a solo flight in a plane owned by defendants and while taking training as a student; that the flight was an authorized flight taken under the supervision and at the direction of the defendants, and that plaintiffs had suffered damages in the amount of $10,000 for insurance which defendants falsely and fraudulently represented was placed or would be placed on their son’s life, and they prayed judgment for that amount.
Defendants’ demurrer to the particular cause of action was on the grounds (1) that the petition did not state facts sufficient to constitute a cause of action, (2) that the petition showed on its face that any cause of action alleged was barred by the statute of limitations, and (3) that the allegations of the petition showed that plaintiffs had no right or authority to maintain the action. This demurrer was sustained generally and plaintiffs appealed.
As a decision on the other grounds of the demurrer determines this appeal we shall not discuss the question of limitation.
Assuming any cause of action accrued to Kenneth Carl Cory by reason of the facts alleged either for fraud or for breach of con tract and that such cause of action survived, it was such that it could be maintained only by his personal representative and not by his heirs. See G. S. 1935, 60-401, 60-403, and G. S. 1947 Supp. 60-3201, and our recent decision in Howe v. Mohl, 168 Kan. 445, 214 P. 2d 298.
Appellants, however, contend that they were not attempting to place themselves “in the shoes of their deceased son” nor to assert a cause of action as his heirs, but on the basis that the son took out insurance for their protection designating them as beneficiaries and that as third party beneficiaries they are entitled to recover. Without taking note of any exceptions thereto, the general rule in the United States is that where a person makes a promise to another for the benefit of a third person such third person may sue thereon even though he is a stranger to the contract and the consideration therefor. See 12 Am. Jur. 825; 17 C. J. S. 1121; Restatement, Contracts, §§ 133, 135, 139, and for recognition of the rule in this state see Maddock v. Riggs, 106 Kan. 808, 190 Pac. 12, 12 A. L. R. 216; French v. French, 161 Kan. 327, 167 P. 2d 305, and cases cited, as well as other cases noted in West’s Kansas Digest, Contracts, § 187, and Hatcher’s Kansas Digest, Contracts, § 98.
The rule that third party beneficiaries may maintain an action in their own names has application only where other allegations of the complaint or petition warrant. It must be alleged and shown that the agreement between the promisor and the promisee, upon which the third parties found their right of recovery, possessed the necessary elements to make the agreement a binding obligation, or stated in other words — a valid and binding contract is essential to the right of a third person beneficiary to maintain suit thereon. See 17 C. J. S. 1136; 12 Am. Jur. 842; and Williston on Contracts, Revised Ed., Vol. 2, p. 1061, § 364a.
An examination of the allegations of the petition discloses that the action is not one for wrongful death under G. S. 1935, 60-3203 as amended in 1939, which may be prosecuted by the decedent’s next of kin under G. S. 1935, 60-3204. Neither may it be said there was any charge of fraud by appellees against the appellants. Appellants more nearly attempted to state a cause of action against the appellees for fraud against their son in not procuring insurance. It is made clear that no insurance was ever effected. As has been stated any cause of action for fraud against the son survived the son under G. S. 1947 Supp. 60-3201, and must have been maintained by his personal representative. But if it be considered that the appellants were attempting to state a cause of action in their own behalf, as third party beneficiaries of a contract between their son and the appellees, it is clear from the allegations of the petition that no valid and binding contract for insurance for their benefit was ever made — the contrary appears. Under the authorities above mentioned the essential element of a valid and binding contract between the promisor and the promisee was lacking, and the appellants as claimed third party beneficiaries may not maintain an action on the theory advanced by them.
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 to partition a described half section of land in Gray county. The trial court sustained plaintiff’s motion for judgment on the pleadings. Defendant has appealed.
The legal question presented is the validity of an order of the probate court, made on the final settlement of an estate, determining the fractional shares of beneficiaries named in the will. It arises in this way: S. P. Rinard, a resident of Gray county and the owner of real and personal property in addition to that here involved, died on February 1, 1946, testate. His will was duly admitted to probate and an executor appointed, who administered the estate and made his final report, which was duly presented to the court and came on for hearing, and a final decree was entered and an order made discharging the executor on March 14, 1947. By that decree the court found the respective shares of the beneficiaries named in the will and made an appropriate decree assigning to each his respective share or interest in the property. No appeal was taken from that decree.
Most of the beneficiaries to whom were assigned fractional shares in the half section of land in question later sold their interests to plaintiff. A few of them sold to defendant. Plaintiff brought this action to partition the property, alleging therein the shares he owned by reason of the deeds from the distributees. Defendant by answer and cross petitioú attacked the order of distribution as to the finding of the fractional shares of the beneficiaries in the will in the property in question. The real question here is whether the probate court made an erroneous interpretation or construction of the will, or whether what the court did amounted to a reformation of the will.
So far as is here important it may be said the will appointed a trustee, with certain duties, some of which are not important here. The portions of the will immediately involved read:
“Second: (d) That portion of my real estate (describing the half section here involved) I give unto my trustee to be leased for a period of three year's and the proceeds therefrom divided, after the payment of necessary expenses, share and share alike, between my sisters, Alla Rinard, Mary Mulinex and Laura Graham. In event any of said sisters shall die before the end of said three year period, the portion to which they should have been entitled shall fall into the residue of my estate. . . .
“Fifth: All the rest, residue and remainder of my property at my death, shall be divided share and share alike among my following nephews and nieces”: (naming thirteen persons).
With respect to the shares of the three sisters, the probate court in its decree found that Alla Rinard died April 26, 1946, and that in accordance with the provisions of the will the one-third share of the income from the half section from the date of the death of Alla Rinard until the expiration of the three year trust period, and then the fee simple title to the undivided one-third of the half section, passed to the residuary legatees. With respect to Mary Mulinex the court found her share to be one-third of the net income for three years under the testamentary trust and then one-third fee simple title to the half section. A similar finding was made as to the share of Laura Graham. The court further found that in accordance with the provisions of the will the shares inherited by Mary Mulinex and Laura Graham in relation to the net income and fee simple title to the half section should pass to the residuary legatees named in the will in the event either Mary Mulinex and/or Laura Graham should die before the three year trust period created by the will. The court further found that under the provisions of the will the share of each of the thirteen persons named in the fifth clause of the will was a one-thirteenth of the residue of the estate.
■ The probate court made and entered an appropriate decree distributing the title to the half section in question in harmony with its findings. The court also approved the final report of the executor and made an order discharging him from further duties. As previously stated, no appeal was taken from the findings and order of the probate court, and none of the distributees of the half section here involved has ever questioned the validity of that decree. They do not question it in this partition action. The plaintiff in this action seeks partition of the property in harmony with the decree of the probate court, having purchased for a valuable consideration the respective shares of a number of the distributees.
The defendant, appellant here, purchased the shares of a few of the distributees and contends that upon the final settlement of the estate the probate court, attempting to interpret and construe the terms and provisions of the will, exceeded its jurisdiction and attempted to rewrite the will and to vest title to the land in controversy in violation of the terms and provisions of the will, and that the decree of the probate court, insofar as it refers to the half section here involved, is void for the reason that it violates the constitution of the United States and the constitution of the state of Kansas. He further alleged that under the will and subject to the trust provisions contained therein the fee title to the land here involved vested in the residuary legatees named in the will, and that each of the residuary legatees was given and devised under the terms of the will an undivided one-thirteenth interest in the real property here involved.
Appellant rests his case primarily upon the rule laid down in Hoover v. Roberts, 144 Kan. 58, 58 P. 2d 83, where it was held:
“The excision of the word ‘intestate’ from a will and the substitution of tlie phrase ‘without issue’ constitute neither interpretation nor construction of the terms of the will, but reformation, over which latter subject matter a district court has no jurisdiction.
“A judgment, void for want of jurisdiction, may be collaterally attacked at any time.”
Appellant concedes that he is making a collateral attack upon the decree of distribution of the estate made by the probate court and argues that if the decree of the probate court is in effect void, as he contends, he has a right to attack it in this case. Appellee concedes these legal principles, but argues there is language in the will which justifies the interpretation of it given by the probate court. We shall not dwell at length upon the analysis of the various provisions of the will upon which this argument is predicated. Appellee further argues that the probate court had not only tlie authority but the duty of interpreting and construing the will and determining the respective shares of the beneficiaries in the land here involved and of making the order of distribution. This point is well taken. See, G. S. 1949, 59-301 (5), 59-2249; Bitzer v. Smith, 158 Kan. 83, 87, 145 P. 2d 148; Herbel v. Nuss, 158 Kan. 376, 147 P. 2d 735. Appellee further contends that even though the probate court erroneously construed the will, die judgment and decree of the probate court became final, and that purchasers of the shares of the respective distributees with this decree of record, a fact to which they were bound to take notice, cannot be heard to question it; that as far as it pertains to the jurisdiction of the probate court, the court had jurisdiction without regard to whether its interpretation of the will was accurate or inaccurate. That doctrine is sustained by the second appeal of the case of Hoover v. Roberts, reported in 146 Kan. 785, 74 P. 2d 152, where it was'held:
“. . . that although the district court had no jurisdiction to reform the will, it did have jurisdiction to construe the will, and that its judgment, as to that portion of the will which constituted only a construction thereof, was final.”
Appellee also cites the case of Kistler v. Fitzpatrick Mortgage Co., 146 Kan. 467, 71 P. 2d 882, where it was held:
“Where a court has jurisdiction of the subject matter of the action and of the parties a judgment within the issues raised by the pleadings, even if erroneous, is not void.”
In that case the court was called upon to review a former decision of the district court, which construed a will by which the testator gave to his wife certain described property “during her natural life, and from and after her death to my grandson, John Albert Kistler, to have and to hold the same absolutely and forever,” as creating an estate tail which could be cut off by a deed. Following that decision a deed was made and the property encumbered by a mortgage. Later the grandson, John Albert Kistler, brought a suit to set aside the former decree upon the ground that it was void, contending that the will gave the widow of the testator only a life estate in the property and vested the fee in him subject to that life estate. This court held that the earlier decree, having been made by a court which had jurisdiction of the subject matter, and the parties, never having been appealed from, was not void but only erroneous and voidable, and could not be collaterally attacked.
In Cross v. Hodges, 124 Kan. 672, 261 Pac. 585, a similar question was before the court and it was held:
“Where the interpretation of a will was properly drawn in question, the judgment of a district court of competent jurisdiction, whether correct or not, is a finality — where all parties concerned in the will and in the judgment were properly impleaded, and where no appeal was taken from that judgment within the time allowed therefor by the code of civil procedure.”
There is merit in having finality of judicial decisions. As we have seen, the probate court at the time of the final settlement of the estate of S. P. Rinard had not only the authority but the duty of interpreting his will, determining the fractional shares of the beneficiaries in his estate, and making an appropriate decree assigning to each of them their respective shares. That was done. If the court erred in doing so the method of correcting the error was by an appeal (G. S. 1949, 59-2401). No such appeal was taken. The parties here are not the original distributees of the estate. They are purchasers from such distributees. They necessarily purchased upon the strength of the probate court’s decree. We think the decree was not void, though possibly it was erroneous. Not having appealed from the order of distribution the distributees could not themselves at this time question the distribution made. Certainly the appellant here is in no better position.
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
Price, J.:
This is an original proceeding in habeas corpus in which petitioner seeks his release from confinement in the Kansas State Penitentiary.
On or about March 29,1948, petitioner was taken into custody by Neosho county authorities for an alleged burglary offense committed in that county. A few days later he was formally charged with sec ond degree burglary and while confined in the county jail awaiting trial he escaped and shortly thereafter was apprehended in the state of Iowa in possession of a stolen automobile. He was released to Kansas authorities and returned to Neosho county where he was further charged with the larceny of an automobile.
The district court appointed cotmsel to represent him in both cases, and on May 12, 1948, he entered his plea of guilty to the charge of burglary in the second degree and to the charge of larceny of an automobile. On the former charge he was sentenced to confinement in the state penitentiary for a term of not less than five nor more than ten years, as provided by G. S. 1935, 21-523, and on the latter charge he was sentenced to confinement in the state penitentiary for a term of not less than five nor more than fifteen years, under the provisions of G. S. 1935, 21-534 (First), the sentences to run concurrently. Shortly thereafter petitioner was delivered into the custody of the respondent warden.
The grounds upon which petitioner seeks his release are that — (1) at the time of his arrest on the burglary charge he was on parole from a federal penitentiary and thus was in the constructive custody of the federal government and not subject to the jurisdiction of a state court; (2) he was forcibly returned to Neosho county following his apprehension in Iowa without proceedings for his extradition being had; (3) he did not receive a preliminary hearing and therefore the sentences imposed upon him were void; and (4) his court appointed counsel was unskilled and that he was misadvised to enter pleas of guilty.
With respect to the first ground mentioned, it appears that on or about January 29, 1948, he was released on a conditional parole from a federal penitentiary and, according to petitioner, the expiration date of his federal sentence, provided he fulfilled the conditions of his parole, was May 5, 1948. He therefore argues that he was under the exclusive jurisdiction of the federal government and that the state authorities had no right to prosecute him during such interim.
This question has been before this court previously and has been answered adversely to petitioner’s contention. In Powell v. Turner, 167 Kan. 524, 207 P. 2d 492, it was held:
“It is true that the attorney general of the United States and the federal courts may refrain from relinquishing a federal prisoner or parolee to state authorities for prosecution within the state. However, the conditional release by federal authorities does not in itself preclude action by a state during the term of probation or parole. It is a discretionary matter with the attorney general of the United States as to whether a federal prisoner will be ‘delivered up’ or a state be permitted to prosecute or incarcerate him. The federal prisoner or parolee cannot himself take advantage of his status by way of defense to a prosecution by the state. The matter of his custody is one of comity between the two jurisdictions, and he has no voice in it.” (p. 530.)
Concerning his second contention, that he was forcibly returned to Kansas after his apprehension in Iowa without extradition proceedings being had, this court has held that the jurisdiction of a district court to try a person on a charge of having committed a public offense does not depend upon how he came to be in this state. (State v. Wellman, 102 Kan. 503, 170 Pac. 1052, L. R. A. 1918D 949, Ann. Cas. 1918D 1006.) See also Brandt v. Hudspeth, 162 Kan. 601, 605, 178 P. 2d 224; 22 Am. Jur., Extradition, § 65, p. 303, and Annotation in 165 A. L. R. 948.
Concerning petitioner’s third contention, that he did not receive a preliminary hearing and therefore the sentences imposed were nullities, it has been held that a plea of guilty operates as a waiver of such right. In Cooper v. Hudspeth, 166 Kan. 239, 199 P. 2d 803, it was held:
“Moreover, if there was any irregularity in such waiver petitioner waived his right to a preliminary hearing by his plea of guilty in the district court.”
Petitioner’s last ground is also without merit. He was a man thirty-four years of age with a previous criminal record, and his unsupported and uncorroborated allegations to the effect that his court appointed counsel did not dutifully represent him at every stage of the proceeding are no basis for his release.
A search of the record before us' discloses nothing which would entitle petitioner to his release, and the writ is therefore denied. | [
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The opinion of the court was delivered by
Price, J.:
The primary question in this case concerns the validity of the delivery of a deed during the lifetime of the grantor. The facts are not in dispute and may be summarized briefly as follows:
Charles A. Hulteen, a native of Sweden, came to this country and settled in Wilson County when about nineteen years of age. He became a naturalized citizen of the United States and resided in the Vilas community of Wilson County until his death. He married, but no children were born of the marriage, and his wife preceded him in death. He was industrious and accumulated personal property and two eighty acre farms, one of the latter being the subject of this litigation. He contributed to and, when his health permitted, attended the Rethel Lutheran Church of Vilas, Wilson County, Kansas, hereinafter referred to as the Church.
C. E. Eklund had been engaged in the real estate and insurance business in Chanute, Kansas, for over forty years. He and Hulteen had known each other for about sixty years. On a number of occasions they had transacted business with each other. In early January, 1946, they met on the street in Chanute, at which time Hulteen said that “he wanted to come up to the office (EHund’s) and fix up a deed on the south eighty to the church.” The latter advised him that if he wanted to do that he should bring in his deed or abstract so there would be no mistake in the legal description of the property to be included in the deed. About a week later they again met on the street and Hulteen told him that he had forgotten “to bring that deed in.”
On January 25, 1946, Hulteen came to Eklund’s office and told him that he wanted to fix up some papers so as to give the south eighty acre tract to the Church. With him he had the deed from his father and mother conveying the property to him. Eklund had his office secretary, Miss Wiggans, fill in the proper blanks in a general warranty joint tenancy deed, conveying to the Church the eighty acre tract in question. Eklund checked it over and handed it to Hulteen, who read it and then signed as grantor. The acknowledgment of his signature was taken by Eklund, who was a notary public. The latter then handed the deed to Hulteen, who in turn handed it back to Eklund and said:
“You put this in your safe and keep it there until I am gone and give it to the Bethel Lutheran Church.”
Eklund then took an envelope, upon which Miss Wiggans typed:
“To be delivered to Vilas Lutheran Church of Vilas, Wilson County, Kansas, upon the death of C. A. Hulteen.”
The deed was placed in the envelope and sealed. Hulteen saw and read the endorsement on the envelope and expressed approval thereof, following which Eklund put the envelope containing the deed in his safe, where it remained until after Hulteens death, intestate, on November 20, 1948.
Immediately after his death Eklund advised the Church officials of the deed and delivered it to them. They recorded the deed and went into possession of the property.
This action, filed originally in the probate court, was by the administratrix of Hulteen’s estate to recover possession of the prop erty in question. The Church prevailed, whereupon the administratrix appealed to the district court. In that court the evidence showed the following, in addition to those facts heretofore summarized:
At the time of his death Hulteen was eighty-four years of age and his surviving heirs-at-law were a brother, niece and nephew. Following the execution of the deed on January 25, 1946, he paid the taxes and collected rents and profits on the eighty acre tract in question. There is no evidence that anyone other than Hulteen, Eklund and Miss Wiggans had any knowledge of the deed during his lifetime. He was in Eklund’s office to transact other business during the interim but at no time did he ever request that the deed be returned to him, nor did he ever attempt to or exercise any control or dominion over it. The testimony of both Eklund and Miss Wiggans was to the effect that when the deed was executed Hulteen was positive and emphatic in his desire that the Church have the eighty acre tract in question.
The district court made conclusions of fact substantially as hereinbefore summarized and then rendered the following conclusions of law:
“CONCLUSIONS OF LAW.
“I.
“There was a valid delivery of the deed during the lifetime of Charles A. Hulteen.
“II.
“The delivery of the deed resulted in vesting title in the defendants Bethel Lutheran Church of Vilas, Wilson County, Kansas, a corporation, to the real estate described therein at the time it was deposited with C. E. Eklund.
“HI.
“The control of the premises by Charles A. Hulteen and his appropriation of the rents and income therefrom following the execution, acknowledgment and delivery of said deed was not inconsistent with and did not serve to affect or defeat the passing of title to and vesting the same in the defendant Bethel Lutheran Church of Vilas, Wilson County, Kansas.”
Judgment was entered accordingly and, her motion for a new trial being overruled, the administratrix has appealed to this court.
Appellant contends that the question before us really narrows down to whether Hulteen, the grantor, intended to pass title to the property at the time he executed the deed and gave it to Eklund, the depository, and it is argued that under the evidence there are only two inferences of a valid delivery, the first being the execution of the deed itself, and secondly, the placing of it in the hands of Eklund. It is also argued that Hulteen did not effectively place this deed beyond his control, as is evidenced by the testimony of Miss Wiggans to the effect there was a “general understanding” in the office that Hulteen could have had the deed back had he wanted it; that such testimony, coupled with the fact Hulteen subsequently rented the property and collected rents and profits on it, shows that he did not thereby intend presently to pass title to the Church, and that since the Church was neither in possession of the deed nor of the property there could be no presumption of a valid delivery.
There are perhaps few questions which have been the subject of more litigation than that concerning the validity of delivery of deeds and our reports are replete with decisions covering every phase of the subject.
In the early case of Wuester v. Folin, 60 Kan. 334, 56 Pac. 490, it was held that before a deed can operate as a valid transfer of title there must be a delivery of the instrument which becomes effective during the life of the grantor; that it is not essential the grantor deliver the instrument to the grantee in person, but that an unconditional delivery to a third person for the use and benefit of the grantee, where the grantor intends to divest himself of the title and to part with all control over the instrument, is ordinarily a sufficient delivery even though there was no formal acceptance of the deed by the grantee until after the grantor’s death, such acceptance, where the grant is clearly beneficial, being presumed.
In Harmon v. Bowers, 78 Kan. 135, 96 Pac. 51, 17 L. R. A. (N. S.) 502, it was held that the manual deposit of a deed with a third party, to receive and hold the same for the grantee, with the intent thereby to give it effect as a conveyance and to place it beyond the custody and control of the grantor, with a declared or manifest purpose of making a present transfer of title, is a sufficient delivery.
It has been repeatedly held that the question of delivery is largely a matter of intention as shown by all the facts and circumstances, and that to establish such delivery it must appear that the deed passed beyond the control of the grantor. (Stumpff v. Kaechler, 95 Kan. 106, 147 Pac. 821; Johnson v. Cooper, 123 Kan. 487, 255 Pac. 1112; Roberts v. McCoach, 145 Kan. 407, 65 P. 2d 289; Stump v. Smarsh, 153 Kan. 804, 113 P. 2d 1058; and Burgin v. Newman, 160 Kan. 592, 164 P. 2d 119.)
One of our most exhaustive opinions on the subject is found in Hush v. Reeder, 150 Kan. 567, 95 P. 2d 313. There many of our earlier decisions were reviewed and the court quoted at length from Young v. McWilliams, 75 Kan. 243, 89 Pac. 12, where it was said:
“. . . Where one who has executed a deed retains it in his own possession, with the intention that it shall become operative upon his death, no conveyance is effected. He dies in the full ownership of the property and the title passes to his heirs or devisees. (Citing authorities.) But where he deposits it with a third person, to be turned over upon his death to the grantee, this is a good delivery if he thereby surrenders all control over it, but not otherwise. (Citing authorities.) In such a case the title is deemed to vest at once in the grantee, only the enjoyment of the property being postponed, a condition which the grantor is competent to create and which arises whenever a purpose on his part to establish it is sufficiently manifested, whether by express instructions to the depositary or otherwise.” (p. 245.)
Tested by the foregoing general rules, we think there can be no doubt but that the evidence in this case leads to the inescapable conclusion that a valid delivery of the deed was made by Hulteen during his lifetime. All of the facts and circumstances clearly show the intention on his part to surrender possesion and control of the deed to Eklund for delivery to the Church after his death. Despite the testimony of Miss Wiggins to the effect there was a “general understanding” in the office (and which was a mere conclusion on her part) that Hulteen could have had the deed back had he so desired, the lower court was fully justified in finding that at no time after depositing the deed with Eklund did he ever attempt to exercise any control or authority over it, and that at the time it was his intention to surrender possession of it to Eklund. And neither was Hulteen’s control of the property and his collection of rents and profits therefrom, subsequent to the execution of the deed, inconsistent with the passing of title at the time he delivered the deed to Eklund. As to that phase of the matter the test is not whether the grantor has retained possession or control of the property, but rather, whether he has retained possesion or control of the deed. We have no difficulty whatever in agreeing with the lower court that a valid delivery was effected and that such delivery resulted in vesting title in the Church at the time the deed was deposited with Eklund.
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover damages for breach of implied warranties on the part of defendant in failing to construct a frozen food locker plant in conformity with the terms of a construction contract.
The all decisive issue raised by the appeal is such that detailed allegations of the pleadings are of little consequence and would merely encumber our opinion. For that reason all pleadings will be briefly summarized.
Plaintiff’s third amended petition filed in the district court of Rourbon county on June 24,1949, alleges the execution of a contract between plaintiff and defendant for the construction of a frozen food locker plant for a price stated. It then asserts the plant was constructed in such a faulty, defective and unworkmanlike manner that it was of little if any value for the purpose for which it was constructed, sets forth in detail the damages alleged to have been suffered by plaintiff as a result of such faulty construction and asks for recovery thereof.
The defendant contested the claims made in the petition by an answer and cross-petition. For our purposes it can be said that in his answer he admitted the execution of the contract, denied generally all allegations of the petition pertaining to defects in the installation of the locker plant, asserted that if there were any defects therein the same were due to the fault and negligence of plaintiff and finally charged that on February 11, 1949, after plaintiff had asserted the plant had been defectively constructed, he and the plaintiff fully settled and compromised all of their differences and disputes of every kind and nature with respect thereto by the plaintiff executing a note and chattel mortgage to him in the sum of $1425.12, being the full amount of the balance due for the construction of such plant, on which note and mortgage plaintiff had made payments at the rate of $50 per month until a short time before the date of the filing of the petition. Copies of this note and mortgage, the latter instrument containing a statement it was given for the balance due on the locker plant, were attached to and made a part of such answer. Defendant’s cross-petition contained two causes of action in each of which he incorporated by reference all allegations set forth in his answer. Ry additional allegations of his first cause of action he asserted execution of the note for $1425.12 on February, 1948, payable in installments at $50 per month, commencing on March 15,1948, and averred that to secure the payment of such amount plaintiff, on the same date, executed a chattel mortgage on the locker plant, an adding machine and a fan, the terms of which provided that if default be made in any installment due on the principal of the note then the whole sum of such note should become immediately due and payable at his option. He then alleged that plaintiff had defaulted in the $50 payment due on August 15, 1948, that he had declared the balance due on the note in the sum of $1175.12 due and payable and asked for judgment in that amount and for foreclosure of his chattel mortgage. Further allegations of his second cause of action were to the effect plaintiff was indebted to the defendant upon an account for repairs, labor and merchandise furnished to plaintiff in the sum of $210.78 for which amount he also prayed judgment. Copies of the note, mortgage and the account duly verified, referred to in such pleadings, were attached to and made a part thereof.
Plaintiff’s response to defendant’s answer and cross-petition was an unverified reply and answer. In his reply he admitted execu tion of the note and mortgage set forth in defendant’s pleadings but denied they constituted a settlement or compromise of his claim against defendant. Allegations of his answer to the cross-petition were to the same effect with an additional denial that he was indebted to defendant in any sum on the verified account sued on in the cross-petition. Roth his reply and answer contained other allegations and averments, asserted as defenses to the note, mortgage and the verified account, which for reasons presently to be disclosed are immaterial to the decisive issue to which we have heretofore referred and for that reason need not be mentioned.
After the plaintiff had filed the foregoing reply and answer to defendant’s answer and cross-petition defendant demurred to such pleadings for reasons (1) the reply failed to state facts sufficient to constitute a defense to his answer and (2) the answer to his cross-petition did not contain facts sufficient to constitute a defense to the two causes of action set forth by him in that pleading. At the same time he filed a motion for judgment on the pleadings on grounds, among others, (1) that the reply and answer to his cross-petition were unverified and hence set up no defense whatsoever to his answer and cross-petition and (2) that plaintiff’s pleadings did not state facts sufficient to constitute a defense to such answer and cross-petition. Thereafter the trial court indicated this demurrer should be overruled, that the motion for judgment on the pleadings .should be sustained only so far as it related to the first cause of action set forth in defendant’s cross-petition, and that otherwise such motion should be overruled.
Following action by the trial court, as heretofore stated, it rendered a judgment against plaintiff for the full amount of the note sued upon by defendant in the first cause of action set forth in his cross-petition and at the same time directed the amount thereof could be taken into account by the jury and off set against damages sustained by plaintiff, if any. In addition it rendered judgment against the defendant overruling his demurrer to plaintiff’s reply and answer to his cross-petition and denying him all other relief sought by his motion for judgment on the pleadings. Defendant perfected an appeal from this judgment in due course. Plaintiff did not cross-appeal.
An examination of appellant’s specification of errors raises two issues which, if decided in his favor, will dispose of this lawsuit, one to the effect the trial court erred in overruling his demurrer to appellee’s reply and the other that it was error to overrule his motion for judgment on the pleadings. For all important purposes the issue raised by each of these assigned errors is the same. Upon resort to the preceding factual statement it will be observed the motion for judgment on the pleadings contained a demurrer within its terms. For that reason we shall treat the motion as tantamount to a demurrer and, without laboring contentions respecting the ruling on the demurrer, turn directly to claims advanced by appellant regarding the trial court’s error in failing to sustain such motion and render judgment in his behalf.
The gist of appellant’s contention on the issue thus raised by this specification of error is that under provisions of our statute and our decisions construing their force and effect he is entitled to judgment on such motion because appellee’s reply and answer to his answer and cross-petition are unverified and therefore fail to state a defense against either his answer or his cross petition. Let us see.
Sections of the statute relied on by appellant as supporting his position and which must be given consideration in determining whether it is to be upheld are G. S. 1935, 60-729 and 60-748. The first of such sections reads:
“In all actions, allegations of the execution of written instruments and endorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account duly verified by affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney. In all actions founded on written instruments for the unconditional payment of money or on a verified account for goods sold and delivered, or a verified claim for the wages of the plaintiff for his personal services, the answer shall be verified by the defendant, his agent or attorney.” (G. S. 1935, 60-729.)
The second provides:
“Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer not controverted by the reply, shall for the purposes of the action be taken as true; but the allegation of new matter in the reply shall be deemed to be controverted by the adverse party, as upon direct denial or avoidance, as the case may require. A demurrer to a reply shall not be held to admit any of the facts alleged in such reply for any purpose other than to determine the sufficiency thereof. Allegations of value, or of amount of damages, shall not be considered as true by failure to controvert them; but this shall not apply to the amount claimed in actions on contract, express or implied, for the recovery of money only.” (G. S. 1935. 60-748.)
That under the provisions of 60-729, supra, the answer to a petition in an action founded on a written instrument for the unconditional payment of money or on a verified account for goods sold and delivered must be verified and that failure to verify such an answer leaves the written instrument or tire verified account, as the case may be, admitted and not open to any defense pleaded or even suggested therein is no longer an open question in this jurisdiction. See e. g., Topping v. Tuckel, 159 Kan. 387, 388, 155 P. 2d 427; Niebauer v. Bivins, 149 Kan. 260, 268, 87 P. 2d 619; Christy v. Kinsinger, 149 Kan. 437, 87 P. 2d 615; Smith v. Jones, 145 Kan. 892, 67 P. 2d 506; McCray Lumber Co., v. Terry, 128 Kan. 529, 533, 278 Pac. 746; Hamson v. Babbitt, 123 Kan. 32, 254 Pac. 332; Walker v. Fleming, 37 Kan. 171, 177, 14 Pac. 470; Missouri River, Ft. S. & G. R. Co., v. Wilson, 10 Kan. 105.
For a further illustration see page 400 of the opinion in Greensburg Production Credit Ass’n v. Buckner, 152 Kan. 398, 400, 103 P. 2d 881, which adheres to the same principle and where, in disposing of a claim a defense of fraud in the inception of an instrument was not in issue under allegations of an unverified answer, it is said:
“To meet this argument defendants argue first that they could prove a defense, such as fraud, in the consideration of a note without verifying their answer. Several cases are cited which hold to that effect. The trouble with that argument is that since the revision of the code in 1909 the rule has been as stated above and a verification is necessary to raise any issue.”
In an effort to avoid the force and effect of the rule announced in the foregoing decisions appellee suggests it has no application except to answers in cases where the action as originally instituted is founded on a written instrument for the unconditional payment of money or on a verified account for wages or goods sold and delivered. This suggestion, in our opinion, has little merit.
It is to be noted that the provisions of 60-748, supra, provide that every material allegation (1) of the petition not controverted by the answer and (2) of new matter in the answer not controverted by the reply, shall for the purpose of the action be taken as true. When this section is read in connection with the requirements of 60-729, supra, we are convinced that the phrase “not controverted” as used therein means not controverted in the manner contemplated by the terms of 60-729, supra. We hold therefore that such section has application to allegations relating to written instruments for the unconditional payment of money or verified accounts for wages or goods sold and delivered even though they are set up in an answer as new matter in defense to the cause of action set forth in a petition and that such instruments or accounts must be denied by a verified reply, else they will be deemed to have been admitted and not open to any defense pleaded in such reply. Indeed this was the rule in this jurisdiction long prior to 1909 when all that was to be found in 60-729, supra, was the first sentence now appearing therein, the last sentence thereof having been added thereto by amendment (L. 1909, Ch. 182 § 110).
See C. B. & Q. Rld. Co. v. Imhoff, 3 Kan. App. 765, 45 Pac. 627, which reads:
“When the answer alleges the execution of a written contract of settlement of the matters in difference between the parties, and no denial thereof is made under oath by the plaintiff, the execution of such contract is admitted, together with all natural inferences to be made therefrom. If the plaintiff desires to avoid the legal effect of such contract, it is necessary that he plead the facts upon which he relies for that purpose; otherwise, evidence in proof thereof is not admissible.” (Syl.)
See, also, Aiken v. Franz, 2 Kan. App. 75, 43 Pac. 308, which holds:
“Where the answer of the defendant denies the truth of the allegations of the plaintiff’s petition, and then sets up a counterclaim and an itemized account thereof, and the same is verified by the affidavit of the defendant as true, the same must be taken as true, unless the denial thereof is verified by the affidavit of the plaintiff, his agent or attorney.” (Syl. f 2).
It should perhaps be added that since 60-729, supra, was amended in 1909, which amendment, we pause to note, added to instead of taking from the requirements of such section as it had theretofore existed, this court, with particular reference to the sufficiency of replies to answers of the character there — and here — involved, has recognized and applied the rule announced in the two decisions from which we have just quoted. (See White Sewing Machine Co. v. Edwards, 120 Kan. 151, 152, 242 Pac. 129; Starr v. Cook, 127 Kan. 122, 123, 124, 272 Pac. 138; Septer v. Boyles, 134 Kan. 339, 340, 5 P. 2d 785; McKay w. Clark, 162 Kan. 653, 178 P. 2d 679.)
Rriefly reviewing the factual situation disclosed by the record it appears that in ruling on the motion for judgment on the pleadings the trial court had before it (1) a petition stating a cause of action in damages for breach of warranties under a construction contract; (2) an answer denying liability under that contract and asserting that all damages claimed in the petition had been fully compromised and settled by the execution of a note, on which pay ments had been made until shortly before commencement of the action, secured by a chattel mortgage which by its terms stated the note represented the balance due on the contract; (3) a cross-petition asking for judgment for the balance on such note, foreclosure of the mortgage, and judgment on a verified account for labor and goods sold and delivered; (4) an unverified reply to the answer and an unverified answer to the cross-petition. In addition the record reveals that notwithstanding one of the grounds of the motion for judgment on the pleadings was based upon the premise the pleadings last mentioned were unverified and hence constituted no defense to the answer and cross-petition no attempt was made to verify them either prior to or after rendition of the judgment in district court.
In the face of pleadings such as have been heretofore outlined we have little difficulty in concluding, that under the section's of the statute to which we have heretofore referred and our decisions construing their force and effect, the trial court erred in failing to sustain appellant’s motion for judgment on the pleadings in its entirety. The legal effect of appellee’s failure to file a verified reply and answer to the appellant’s answer and cross-petition was the same as if he had filed no pleadings at all. It left allegations of appellant’s answer and cross-petition relating to execution of the note and mortgage as a compromise settlement, the correctness of the verified account and the amount due on both the note and account undenied and it presented no issue of fact with respect thereto. In such a situation appellant was entitled to have his motion for judgment on the pleadings sustained and to judgment as prayed for in his answer and cross-petition. It follows the trial court erred in sustaining only a portion of the motion for judgment on the pleading and that its judgment must be reversed with directions to render judgment in favor of appellant as indicated herein.
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The opinion of the court was delivered by
Wedell, J.:
This action was filed in the district court by one of two sons of the decedent, Gertrude Ames, for partition of real estate, for an allowance to the plaintiff of moneys claimed to have been expended for valuable improvements on the real estate during the years he occupied the premises as a cotenant prior to his mother’s death and to quiet title.
The plaintiff was Claude W. Ames. The defendant son was Albert H. Ames, a nonresident of the state. Other defendants were listed as claiming some adverse interest but it was alleged they had none and their claims should be barred and the title quieted in the cotenants, the plaintiff, the defendant, Albert H. Ames, and the estate of Gertrude Ames, deceased, in accordance with their respective interests. The mother died intestate December 26, 1948, and on February 12, 1949, J. O. Harrison was appointed administrator of the mother’s estate. The instant action was filed October 4, 1949, in the district court of Osborne county in which county decedent had resided and in which her estate was being administered.
In addition to the foregoing facts the petition, in substance, further alleged:' Plaintiff, the defendant, Albert H. Ames, and the decedent were cotenants; decedent at her death was the owner of an undivided two-thirds interest in the land; the plaintiff and defendant, Albert H. Ames, were each the owners of an equal undivided one-sixth interest therein prior to and at the death of Gertrude Ames; the land was not a homestead and was subject to the payment of decedent’s debts and the costs of administration; if the land could not be partitioned in kind it should be sold; plaintiff had increased the value of the land to the extent of $8,150 by making valuable improvements thereon during his occupancy; if the land was sold there should be paid out of the proceeds (1) the -costs of the action, (2) the taxes thereon, and (3) the amount of the value of improvements and thereafter the residue should be paid two-thirds to the administrator and one-sixth each to plaintiff and the defendant, Albert H. Ames; the interest of the plaintiff and of said estate should be taken subject to a mortgage lien of the State Bank of Downs.
The administrator answei-ed and admitted decedent’s estate was being administered in the probate court of Osborne county; the plaintiff, the defendant, Albert H. Ames, and the decedent were owners of the interests in the land as stated in plaintiff’s petition; the land was not a homestead, was subject to payment of decedent’s debts and costs of administration; it should be partitioned; other defendants named by plaintiff as claiming some interest had no interest and the title should be quieted against them as requested by plaintiff.
The administrator denied plaintiff had erected improvements on the land of the value alleged.
The administrator also filed a cross petition in which he alleged plaintiff had failed and neglected to make an accounting of rents and profits he had obtained from the premises over the years of his occupancy and that he should be required to make such accounting and the amount found due should be declared a lien on the interest awarded to the plaintiff.
The administrator offered no testimony in support of his cross petition. The appraisers found the property could not be partitioned in kind. The court ordered the property sold, adjudged plaintiff had a lien on the property in the sum of $8,500 subject only to the costs of the action and taxes due, if any. It ordered the property sold and directed the costs and taxes due, if any, be paid. It ordered the lien for improvements be paid next out of the proceeds of the sale and the residue paid to the three cotenants in accordance with then- respective interests.
Service on the defendant, Albert H. Ames, was by publication which the court approved. Neither he nor any other defendant except the administrator answered. Only the defendant, Albert H. Ames, has appealed.
Appellant contends the district court was without jurisdiction to render a judgment against decedent’s estate for any part of the plaintiff’s, appellee’s, claim for improvements alleged to have been made on the land. Appellant argues if the judgment is permitted to stand two-thirds of the value of the improvements will be paid out of assets of decedent’s estate and only the probate court has jurisdiction to hear and determine that claim, citing Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188; In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879, and contending numerous other decisions are to the same effect. Neither the Egnatic nor the Thompson case was an action for partition of real estate.
If this were a partition action in which heirs, as such, sought to carve out and have set aside to them portions of a decedent’s estate the district court would not have jurisdiction. (Felton v. Rubow, 163 Kan. 82, 179 P. 2d 935; Houdashelt v. Sweet, 163 Kan. 97, 103, 180 P. 2d 604.) That, however, is not this case. Here the title to the respective interests of plaintiff (appellee), appellant and their mother had vested in each of them prior to the mother’s death. In asking partition in the instant case appellee simply asserted his own, his defendant brother’s and their mother’s interests as they stood prior to her death and sought to have those interests segregated. In this action appellee and appellant in legal contemplation occupy the same position as complete strangers would occupy towards decedent’s estate. That is also true concerning the other defendants against whom it was sought to have the interests of the co-tenants quieted. Under these circumstances the partition action was properly brought in the district court. (Stuart v. Hoatson, 163 Kan. 117, 180 P. 2d 609.)
In order to clearly understand under what circumstances heirs may bring an action in partition in the district court and when they may not do so it will be helpful to read the Stuart, Houdashelt and Felton cases, supra. They were all decided on the same day.
We therefore start our consideration of appellant’s contention with a clear understanding the district court had jurisdiction to entertain this partition action and the reasons therefor.
Having jurisdiction of the parties and subject matter-, what was the extent of the district court’s power in the partition action? G. S. 1935, 60-2114 provides:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
By virtue of this statutory rule a court of equity, when its jurisdiction has been invoked for any equitable purpose, will proceed to determine any other equities existing between the parties, connected with the main subject of the suit, and grant all relief necessary to an entire adjustment of such subject, provided it is authorized by the pleadings. (Young v. Young, 148 Kan. 876, 880, 84 P. 2d 916.) The relief granted here was fully authorized by the pleadings. In conformity with the foregoing and similar statements of the rule cited relief has been granted under varying circumstances in order to effectuate a full and complete adjustment of the rights of the parties arising out of their cotenancy. This principle is so thoroughly settled as to make citation of numerous authorities unnecessary. Some of them are listed in the recent case of Knutson v. Clark, 169 Kan. 205, 217 P. 2d 1067. It was there held proper in a partition action for any occupying tenant to allege a claim for expenditures resulting in the improvement of the premises.
The instant improvements have become and are an integral part of the real estate. It is sold as a unit. The extent to which the improvements enhanced the value of the land was clearly a necessary and indispensable consideration in a just and equitable par tition and settlement of the rights of the cotenants in and to the proceeds of the sale. To conclude the district court was without jurisdiction to consider and determine the extent to which the improvements enhanced the value of the land would be tantamount to denying tihat court the full and complete legal and equitable power we repeatedly have said it has.
Appellant contends that although we held the partition action in Sheedy v. Willoughby, 157 Kan. 508, 142 P. 2d 801, was properly brought in the district court that decision is authority for his contention that two-thirds of the claim for improvements in the instant case was a claim against the decedent’s estate and that such claim had to be presented in the probate court. In that connection he stresses a part of what was said in the Sheedy case after we had stated the kinds of claims which had to be presented in the probate court. The statement in the Sheedy.case is:
“It by no means follows that action must also be brought in the probate court when the parties are not asserting as against other parties any claim upon assets of the estate.” (p. 512, 513.) (Our italics.)
Appellant emphasizes the italicized language in the foregoing statement. The first question here is what portion of the proceeds of the sale constituted assets of the estate and, second, was a claim being asserted against those assets? As previously stated the land and improvements constitute a unit and are sold as such. Appellant’s contention erroneously assumes two-thirds of the proceeds of the sale of the land with the improvements are assets of the decedent’s estate. They are not. Only the proceeds of the sale after having first deducted therefrom the costs of the action, unpaid taxes, if any, and two-thirds of the amount by which the value of the land was enhanced by the improvements are assets of decedent’s estate. No one in this action is claiming anything out of those assets. It is conceded they belong to the estate.
Appellant asserts the trial court erred in declaring the cost of the improvements constituted a lien on the land. Strictly speaking, the extent to which the value of the land was enhanced by improvements did not constitute a lien. The mere fact, however, a proper claim of a cotenant in a partition action does not actually constitute a lien on the land does not mean it is not equitably to be considered in decreeing a just and equitable partition between the parties. (Young v. Young, supra, p. 880.)
Appellant finally argues the court allowed $8,500 for the im provements when appellee in his petition claimed only $8,150 and that the court was without jurisdiction to render a judgment in excess of the amount claimed. There was evidence the improvements enhanced the value of the land to the extent of $8,500. Just how it happened the court made the allowance it did does not appear. As previously stated, appellant did not answer or appear at the trial. Appellee filed no motion to make the pleadings conform to the proof. No motion for a new trial was filed by anyone and'it nowhere appears the excessive judgment was called to the attention of the trial court. Nevertheless under the circumstances stated the allowance for improvements could not exceed the amount claimed therefor in the petition. It is the order of this court that the judgment be corrected accordingly and that appellee remit the excess, if paid to him.
In all other respects the judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal by the state director of Alcoholic Beverage Control from a judgment of the district court of Sedgwick county reversing an order of the State Alcoholic Beverage Control Board of Review which affirmed appellant director’s order refusing a retail liquor dealer’s license to one Clarence Lowe, and ordering issuance of said license. Briefs were filed by the state Board of Review and by attorneys for applicant Lowe as amici curiae.
The undisputed facts involved are as follows: Appellee Lowe, a resident of Wichita, filed an application for a retail liquor license with the director of Alcoholic Beverage Control in accordance with the provisions of chapter 242, laws of 1949, known as the Liquor Control Act. At his hearing held pursuant thereto, evidence was introduced showing two arrests on charges of gambling in October and November, 1934, in each of which Lowe forfeited bonds for appearance on the charges, and one arrest and charge of possession of gambling equipment in 1937, to which he pleaded guilty. Because of this record of law violations, the director — appellant here-denied Lowe’s application for a license on the ground that the offenses of gambling and possession of gambling equipment were offenses “opposed to decency and morality” which disqualified applicant under section 27 (1) (g) of the Kansas Liquor Control Act (ch. 242, laws 1949). That section provides:
“No license of any kind shall be issued to a person who has been convicted of or has pleaded guilty to being the proprietor of a gambling house, or' of pandering or other crime or misdemeanor opposed to decency and morality or shall have forfeited his bond to appear in court to answer charges for any such violation.” (Emphasis supplied.)
From appellant director’s ruling, Lowe appealed to the Board of Review (sec. 37 of the Act) which, after a hearing, upheld the director. Lowe then appealed to the district court of Sedgwick county (sec. 39) and the district court held that the offenses committed were not within the purview and intent of the Kansas Liquor Control Act, and ordered the director to issue to appellee Lowe the license applied for. Appeal to the supreme court is made in accordance with the provisions of section 39 of the Act (ch. 242, laws of 1949).
At the outset it must be remembered that the power of the legislature to fix the qualifications of applicants for liquor licenses is not here in question; it is in fact admitted that it has that power and authority. As heretofore indicated, the legislature has prescribed that no applicant for a retail liquor license shall be entitled thereto if he has been convicted of or has pleaded guilty to being the proprietor of a gambling house or of pandering or other crime or misdemeanor opposed to decency and morality, or shall have forfeited his bond to appear in court to answer charges for such violation.
The sole question involved in this appeal is: Does the conviction of, the pleading guilty to, or the forfeiture of a bond for appearance to answer charges of gambling or the possession of gambling equipment constitute a crime or misdemeanor opposed to decency and morality as the same is used and employed under the provisions of section 27 (1) (g), ch. 242, laws of. 1949, known as the Kansas Liquor Control Act?
The court, in considering the provisions of sec. 27 (1) (g), is of the opinion that the words “or other crime or misdemeanor opposed to decency and morality” are not limited to the two offenses enumerated, i. e., “the proprietor of a gambling house” or “pandering.” In fact, the words “proprietor of a gambling house” might well be interpreted to include either the offense of gambling or possession of gambling equipment, placing them within the prohibition of the statute.
Whether gambling, in the various phases in which it is practiced, is demoralizing in its tendencies and therefore an evil is no longer an open question. It has been generally held that gambling is injurious to the morals and welfare of the people (24 Am. Jur. 399-400), and our state is no exception to the well established general rule. Since the days of territorial statehood, gambling houses and gambling devices have been prohibited (G. S. 1935, 21-915). Since 1895 it has been unlawful for any person to permit gambling on premises he owned or occupied (G. S. 1935, 21-917); gambling places have been declared a nuisance, subject to injunction proceedings (G. S. 1935, 21-918); it has been declared unlawful for any person to bet any money or property at or upon any gaming table, bank or gaming device or upon the result of any game of skill or chance, whether with dice, cards or other thing (G. S. 1935, 21-924). These and other forms of gambling enumerated in our statutes have been prohibited in this state since the earliest days of our statehood, and such statutes are presently in force and effect.
This court has said:
“What constitutes good moral character is not easy to determine or define, but upon general principles one who does that which is forbidden and penalized by the law of the land does not possess the character and fitness required by the statute. . . . (In re Spencer, 22 Fed. Cas. 921; 4 Words & Phrases, 3124; 2 Words & Pirrases, 2d series, 759).” Crabb v. Board of Dental Examiners, 118 Kan. 513, 516, 235 Pac. 829, 269 U. S. 580, 70 L. Ed. 422, 46 S. C. 105; 54 A. L. R. 1519n.
See also State v. Bieber, 121 Kan. 536, 247 Pac. 875, 48 A. L. R. 252.
Because of the close personal contact and close relationship which necessarily exists between those engaged in the sale of liquor and the general public, the legislature in setting up rules and regulations to govern the traffic in liquor — long prohibited in this state — realized and gave effect to the importance of selecting only those applicants with unblemished character and possessed of a high standard of morals and decency.
It follows that the admitted violations of law by appellee constituted such conduct within the meaning of the statute under consideration as to be opposed to public morals and decency. What constitutes decency and good moral character may vary in some respects at different times and places. It may be said with good reason that a person who violates the law thereby manifests in a greater or lesser degree that he is not well disposed to the good order and well being of society, and therefore does not meet the standard contemplated by the legislature. It cannot be said that a person who has twice been arrested and has forfeited his bond for appearance on the charge of gambling and who has pleaded guilty to a charge of possession of gambling equipment possesses the required standards of morals and decency to permit his being licensed to sell liquor within the meaning of the statute under consideration.
In view of what has been said, the judgment of the district court is reversed and the case remanded with directions to enter judgment for appellant. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal by interpleaders from a ruling of the lower court sustaining a demurrer to the evidence on their inter-plea to set aside a sheriff’s sale to an undivided one-fourth interest in certain real estate which they claim as owners.
The facts are as follows: On March 11, 1937, appellees Earl K. Brooks and Vera L. Brooks obtained a personal judgment against defendant Carl C. Olson which was kept current by successive executions. On the last execution, levy was made by the sheriff on an undivided one-fourth interest in the land in question, known as the Ryan farm, on the theory that said interest was owned by Carl C. Olson as one of the heirs of Nellie Olson Ryan, deceased. The undivided one-fourth interest in the Ryan farm was sold thereunder to the judgment creditors and appellees herein. After the sale, appellants filed a petition of intervention and amendments thereto contending they were owners of the land in question by right of inheritance from their father Charles K. Ryan, as disclosed by his will and consent thereto by his widow Nellie Olson Ryan, and by reason of a judgment of the probate court in the Charles K. Ryan estate construing his will wherein his widow, Nellie Ryan, took but a life estate and the remainder vested in these intervenors; that as a result Carl C. Olson had no interest in said property on which a levy could be made. Intervenors asked that the levy in the sheriff’s sale on the property in question be vacated and set aside and that appellants be declared to be owners of the property, and for other equitable relief. Appellees filed an answer to the intervening petition wherein they admitted that appellants were the children and sole heirs at law of Charles K. Ryan, deceased; that the will of Charles K. Ryan was admitted to probate; that on December 7, 1925, he became the owner and was at the date of his death the owner of an undivided one-half interest in the property in question, and that after his will was admitted to probate, the probate court made an order construing said will on March 13, 1945, adjudging and declaring Nellie Ryan, widow of decedent and stepmother of decedent’s six children, interpleaders herein, to have a life estate in the real estate of decedent and the six children to have the remainder interest.
Issues were joined and the case proceeded to trial without a jury. The parties stipulated that proceedings had in the probate court of Labette county in the estates of Charles K. and Nellie Ryan, deceased, be admitted in evidence. The evidence discloses that Swan Olson died intestate in 1904, owner of a 160-acre farm in Labette county known as the Olson farm, leaving as his sole heirs at law his widow, Nellie Olson, and two sons, Silas O. Olson and Carl C. Olson, the latter being the judgment debtor and defendant in this action.
In 1911, Charles K. Ryan, a widower and father of six children, (five of whom are named as interpleaders, the sixth interpleader being the widow and sole heir of the sixth child) married Nellie Olson, mother of the two Olson boys referred to above. The family moved to the Olson farm where Charles IC. Ryan made valuable improvements and paid the existing mortgage. In December, 1925, Jack Ryan, brother of Charles 3C. Ryan, by warranty deed conveyed to Charles K. and Nellie Ryan the Ryan farm, the real estate involved in this litigation. By this deed, Charles IC. and Nellie Ryan became joint owners of the 240-acre Ryan farm. In the spring of 1926, Charles K. Ryan and Nellie Ryan moved to the Ryan farm, the Olson boys remaining on the Olson farm; an oral agreement was en tered into the same spring whereby the Olson farm was to become the sole property of the Olson boys, and Charles K. and Nellie Ryan would occupy the Ryan farm during their lifetimes and at the death of the survivor of them, the Ryan children were to inherit it; there was a family agreement to the effect that the Olson farm was to be kept in the Olson family and the Ryan farm was to be kept in the Ryan family. In January, 1931, Charles K. and Nellie Ryan conveyed the Olson farm to Silas O. Olson and Carl C. Olson, and in June, 1947, shortly after the death of Nellie Olson Ryan, the Olson boys executed and delivered to these six interpleaders their deed to the Ryan farm.
On the first of August, 1939, Charles K. Ryan made and executed his will. Parts thereof pertinent to this appeal are as follows:
“Item 2. It is my will that my beloved wife Nellie Ryan have and hold control of the home and farm and receive the net income from the entire estate, during her life.
“Item 3. It is my will that after my wife and myself are both dead the homestead, consisting of 240 acres of land described as follows: The East % of the SE % of Section 31, Township 33, Range 18 and the SW K of Section 32, Township 33, Range 18 in Labette County, Kansas, become a home for cripples', wornouts and destitute children of my descent, so far as the income from the homestead will allow. Before any allowances are made, the Trustee, shall see that all taxes are paid and buildings and insurance on same are maintained. Any income if any more than the items mentioned, shall be divided equally between my children. The Homestead shall be maintained, as provided above, until the death of the last survivor of my children, each shall have the right to dispose of his or her interest, only to become effective, only on the death of the last survivor of my children. The furniture and pictures, musical instruments, books and jewelry, if any, shall remain in the home. The names of my cliildren are as follows: Ernest C. Ryan, Floyd Ryan, Alexander C. Ryan, Margaret L. Ralston, Glenn C. Ryan and Richard Morgan Ryan.”
The following “consent” by Nellie Ryan was attached to the will:
“CONSENT OF WIFE TO WILL.
“The undersigned, Nellie Ryan, wife of Charles K. Ryan, the Testator, of this will, having read the will and being well informed of the contents thereof, and the provisions made for me, therein and being well informed of my rights under the will and under the law in and to said property, hereby consent, that Charles K. Ryan, may bequeath away from me more than one half of my property.
“Dated this 1st day of August, 1939.
“Nellie Ryan”
Both the will and the consent of Nellie Ryan thereto were properly executed according to law and are not questioned here. On January 1, 1944, Charles K. Ryan died testate and on February 9 following, Nellie Ryan, widow, filed the will for probate, and it was admitted to probate on March 6, 1944. One of the court’s findings was that the consent by the wife was a valid election to take under the will. Margaret L. Ralston, one of the interpleaders, was appointed executrix.
On February 13, 1945, the executrix filed her petition in the probate court to construe the will of Charles K. Ryan. Pertinent parts of the findings and order of the court entered in that action on March 13, 1945, are as follows:
“Thereupon evidence was introduced in support of said petition and the court after hearing the evidence and carefully examining said last will and testament of the said Charles K. Ryan, deceased, and being now fully advised in the premis'es, finds specifically as follows:
“That Item 2 of said last will and testament gives to Nellie Ryan, widow of said deceased testator, a life estate in and to all of the property, both real and personal and the income therefrom owned by said decedent at the time of his death.
“That Item 3 of said last will and testament is so vague and indefinite that it is impossible to administer the same and is impossible and incapable of performance as set forth in said last will and testament. That the restraint of alienation of the real estate by the remainderman as therein named in said Item 3 is illegal and void and is a violation of the rule against perpetuities.
“The court finds after careful consideration of said instrument and after viewing the samé and interpreting tire same as a whole that the true intent of said testator was as follows, to-wit:
“1. To give to Ills' wife, Nellie Ryan, a life estate in all of his property, both real and personal and the income therefrom.
“2. To give to his children, to-wit: Ernest C. Ryan, Floyd Ryan, Alexander C. Ryan, Margaret L. Ralston, Glenn C. Ryan and Richard Morgan Ryan, share and share alike, the remainder interest in all of his real estate upon the death of the life tenant, Nellie Ryan.
“Therefore It Is By the Court Considered, Ordered, Adjudged and Decreed, that the last will and testament of the said Charles K Ryan, deceased, be and it is hereby construed to give to the s'aid Nellie Ryan, widow of said decedent, a life estate in and to all of the property, both real and personal and the income therefrom, owned by said decedent at the time of his death; to the children of said decedent, to-wit: Ernest C. Ryan; Floyd Ryan; Alexander C. Ryan; Margaret L. Ralston; Glenn C. Ryan; Richard Morgan Ryan and each of them share and share alike, the remainder interest in and to all of the real estate owned and possessed by said decedent at the time of his death.”
Petition for final settlement was filed on May 15, 1945, and on June 12, 1945, the court made its final order and decree. Pertinent parts thereof read as follows:
“Therefore It Is By the Court Considered, Ordered, Adjudged and Decreed, that . . . the real and personal property belonging to said estate be distributed to the persons entitled thereto as provided in the order of this court, dated March 13, 1945, as hereinafter set forth, to-wit: Nellie Ryan, a life estate in and to the real and personal property and the income therefrom belonging to said estate as set forth in said petition for final account. The remainder of said real estate upon death of the said life tenant, Nellie Ryan, shall pass in equal shares in fee simple absolute to the said Ernest C. Ryan, son; Floyd Ryan, son; Alexander Ryan, son; Margaret L. Ralston, daughter; Glenn G. Ryan, son; and Richard Morgan Ryan, son.”
The order of the court further provided that the estate be duly closed and the executrix discharged. Procedure in probate of the estate of Charles K. Ryan is not questioned here.
On March 12, 1947, Nellie Ryan, widow, died intestate. On March 25, following, petition for appointment of an administratrix of the estate was filed in probate court alleging among other things that Silas O. and Carl C. Olson were her sole and only heirs at law, and asking that an administratrix be appointed to take charge of certain personal property belonging to said estate. Margaret L. Ralston was appointed administratrix on April 22, 1947, the order of appointment reciting that upon the date of decedent’s death, she was the owner of certain personal property and a life estate in certain personal property inherited through the estate of Charles K. Ryan, her deceased husband. No mention is made of any real estate in either the petition for appointment of an administratrix or in the court’s order subsequent thereto. On June 15, 1948, a petition was filed for final settlement wherein it is alleged among other things that in addition to said personal property, petitioner has under her control and management real estate belonging to said estate, and describes an undivided one-half interest in the property involved in this action. On July 13, 1948, the court made its order for final settlement and discharge of the administratrix without describing any real estate. A part of the court’s order reads as follows:
“4. The court further finds that said decedent, Nellie Ryan, died single and intestate on the 12th day of March, a. d. 1947, a resident of Labette County, Kansas, leaving surviving her as her sole and only heirs at law the persons' whose name and relationship to decedent are as follows, to-wit: Silas O. Olson, her son and Carl Olson, her son. The court finds that s'aid sole and only heirs at law of said decedent are entitled to receive, each an undivided one-half interest in the real estate and personal property belonging to and owned by said decedent at the time of her death.”
No real property is described or listed, and it may be said that a reading of the petition for appointment of an administratrix and the order appointing her eliminates any real property and confines the order to personal property of her own and the life estate in property inherited from Charles K. Ryan.
At the close of appellants’ case, appellees interposed a demurrer to the amended interplea and evidence adduced in support thereof which was by the court sustained and the appellants’ interplea dismissed.
Appellants assign as error: (1) The ruling of the lower court sustaining the demurrer to their evidence and dismissing their amended interplea; and (2) the rendering of judgment in favor of appellees and against appellants.
Appellants first contend that analysis of the will of Charles K. Ryan and the consent thereto by the widow Nellie Ryan establishes that Carl C. Olson had no interest in the Ryan farm which would be subject to execution and sale since the interest of his mother, Nellie Ryan, was but a life estate. As heretofore related, on August 1, 1939, Nellie Ryan consented in writing to the will of Charles K. Ryan. At the time of the death of Charles K. Ryan on January 1, 1944, the record title to the Ryan farm rested in Charles K. Ryan and Nellie Ryan jointly by virtue of a deed dated December 7, 1925, from Charles’ brother Jack Ryan. Under Item 2 of the will, Nellie Ryan’s interest in the real estate was limited to a life estate and under Item 3 of the will as construed by the probate court on March 13, 1945, appellants held the remainder interest in said property subject to the life estate of Nellie Ryan.
Not only did Nellie Ryan give her written consent to the will of her husband wherein he devised an undivided one-half interest in real estate owned by her, but subsequent to his death, she filed a petition to admit the will to probate alleging that the will was duly executed by the testator in all respects as provided by law and further alleging that on August 1, 1939, she as wife of decedent, of her own free will and accord while under no restraint or undue influence, executed her consent to said will, and made the will and consent thereto a part of the petition. Based thereon, the court ordered the will admitted to probate and found the consent thereto by Nellie Ryan to be valid and genuine. In the same proceedings, the court on petition to construe the will ordered that Nellie Ryan, widow, had but a life estate in the real estate, with the remainder in fee upon the death of Nellie Ryan, life tenant, to the children of decedent, Charles K. Ryan, the appellants herein. No appeal was taken from the rulings and orders of the probate court, and the same became final orders prior to the death of Nellie Ryan. Consequently the written consent of Nellie Ryan to the will of Charles K. Ryan ratified and confirmed the testamentary disposition made by her husband, Charles K. Ryan, of her property, giving her but a life estate therein. Nellie Ryan, having consented to his will, consented to an alienation of whatever fee interest she may have had in this real estate and that her interest be limited to a life estate only.
Our decisions all hold that where a testator devises property, title to which is held by his wife, and she gives her written consent to such testamentary disposition of it, the wife thereby in effect renounces her right of ownership in the devised property and bars all persons whose right thereto must be claimed under and through her. (Aten v. Tobias, 114 Kan. 646, 220 Pac. 196; Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444; Chilson v. Rogers, 91 Kan. 426, 137 Pac. 936.) In Aten v. Tobias, supra, we stated: (p. 654)
“The wife’s written consent in conformity with the statute has the same effect as the widow’s election after the testator’s death. (Gen. Stat. 1915, § 11790; Keeler v Lauer, 73 Kan. 388, 395, 396, 85 Pac. 541; Chilson v. Rogers, supra, 426, 430; Erickson v. Robertson, 116 Minn. 90; 37 L. R. A. n. s., 1133 and note.) It has been held that where a husband makes a will disposing of all his property, without any provision therein for his wife, and the wife gives' her consent thereto in writing, the will is valid and cannot be overthrown by the wife’s descendant heirs at law. (Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444.) Nor is there any hardship in this doctrine. The devolution of a man’s property at his death is wholly a matter of statute; it is governed by legislation — the statute of wills or the statute of descents and distributions. Moreover, in this case, although the title to the home place was in the wife, it was a perfectly natural thing for the husband and wife to agree that the home place, and all the other lands of Cyrus, in all of which Susan had a wife’s' inchoate interest, should be held intact for the benefit of the grandchildren, after sufficient provision was made for Susan if she should survive her husband, and since Susan consented to the testamentary disposition of all tlies'e lands — her own and her inchoate half interest in all the lands of Cyrus — it will have to stand.” .
In view of what has been said, it therefore follows that on the death of Nellie Ryan, her life estate and only interest in the property in question ended and her son Carl C. Olson, defendant and judgment debtor, inherited no interest in the land and consequently there was nothing upon which the appellees could levy and sell to satisfy the judgment against Carl C. Olson. In an examination of the proceedings in the estate of Nellie Ryan, deceased, we find nothing that alters the conclusion hereinbefore related. In view of our conclusion, it is unnecessary to further consider other questions presented.
The judgment of the lower court is reversed and the cause remanded with instructions to enter judgment for the appellants. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action in ejectment. Judgment was rendered generally for defendants, and plaintiff.appeals.
Appellant alleged in his petition that he was the owner of an undivided one-half interest in the quarter section of real estate in question; that he was a tenant in common with appellee Barbara Rupp, owner of the remaining one-half interest; and that he was entitled to possession of said real estate but appellees wrongfully keep him out of possession thereof. Appellee Elmer Rupp for his defense denied appellant’s right of possession and alleged that he was a tenant of appellant by virtue of an oral lease. Appellee Barbara Rupp filed a general denial.
At the outset it might be stated that appellant Alex A. Rupp and appellee Barbara Rupp are husband and wife and appellee Elmer Rupp is their son. It is admitted that appellant and appellee Barbara Rupp are joint owners of the real estate in question and had occupied it as their homestead for about thirty years. The undisputed facts are that on August 23,1949, Barbara Rupp in another action in the same court filed suit for divorce against appellant and on the same date secured an order restraining appellant from:
“going to the home of the plaintiff [Barbara Rupp] or the premises appurtenant thereto (describing involved quarter section of real estate) or remaining in and about said premises while the plaintiff occupies the same as a home and that he be and he is hereby restrained and enjoined from in any manner, either by actions or words, interfering with or molesting the plaintiff while in the peaceable possession of said home and he is hereby restrained and enjoined from bothering or hindering the plaintiff in any way at any other place that she may be . .
This order was duly served on appellant.
Thereafter and on September 15, 1949, appellant, in violation of the restraining order, went with another son to the garage on the described premises to see his car, to get the son’s fish seine, and to see about wheat planting, but both of them were ordered to leave the premises by appellee son Elmer, appellee Barbara Rupp being present and verbally assisting, and they were advised not to return unless they brought a sheriff along.
On September 17 following, this action in ejectment was filed, after trial of which the court found that “the evidence fails to show any forcible eviction from the land” and entered judgment for appellees, defendants below.
Appellant’s cause of action in ejectment is based on G. S. 1949, 60-2001, which provides for the recovery of real property. Inasmuch as ejectment is a possessory action, under the statute it was incumbent upon the appellant to allege and to prove not only that he had a legal or equitable estate in the land, but that he had a present or immediate right to possession of the property in question. It follows, therefore, that anything which deprived appellant of his present right of possession would deprive him of the remedy of ejectment. (Hurd v. Comm’rs of Harvey Co., 40 Kan. 92, 19 Pac. 325; 18 Am. Jur. 40-41.)
It was stipulated that appellant had a legal estate in the land; the question is, was he entitled to possession thereof?
It is disclosed by the record that appellant was not entitled to possession of the property. On August 23, 1949, appellant was restrained by the court order in the divorce action from going on the property, as hereinbefore related. This restraining order, so far as the record in this case is concerned, was on the date complained of and is still a valid and existing order of the court, and no attempt has been made by the appellant to have said order modi fied or abated. Under such circumstances, the record fails to disclose, as found by the court, any unlawful eviction from the land in question. Appellant’s own testimony discloses that he was served with the order restraining him from going to the premises where appellee Barbara Rupp was residing, and that his claimed ejectment was subsequent to the service of that order upon him.
The court found generally in favor of the appellees. We have examined the record and find that the court’s judgment is sustained by ample competent evidence. It is the well established rule in this state that the matter of determining the weight of the evidence and the credence to be accorded to the testimony of witnesses is the exclusive function of the trial court and not a matter for appellate review. (Rasmussen v. Rasmussen, 124 Kan. 461, 260 Pac. 618; Harrison v. Lyon, 126 Kan. 705, 271 Pac. 395; Adams v. Morgan, 142 Kan. 865, 52 P. 2d 643; 5 C. J. S. 682, § 1656b.)
In view of the foregoing, it is unnecessary to determine other questions raised by the appellant. The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment of the district court, holding that a purported last will and testament was not entitled to probate.
The purported will was made by Elizabeth Mead on October 4, 1948. Under its terms she devised to her niece, Elizabeth Carter, a tract of real estate in Paola, Kansas, and bequeathed and devised to John I. McDonald and Letha McDonald, husband and wife, all of her other property. John I. McDonald was named as executor.
On December 17, 1948, John I. McDonald filed his petition in the probate court for the admission of the will to probate, and that court ordered that the petition be heard on January 17, 1949. The hearing was twice continued and on March 4, 1949, William T. Yates, a nephew and Elizabeth Carter, a niece of the decedent, filed their answer and objections to the petition for probate, alleging, in substance, that the execution of the purported will was procured by undue influence of John I. McDonald and Letha McDonald; that the McDonalds were the principal beneficiaries under the will and caused it to be prepared and that Elizabeth Mead had no independent advice with respect to the will; that Elizabeth Mead was ill and her mind was so affected by the illness and otherwise that she was mentally incompetent; that the will was not executed in the manner required by law and that Elizabeth Mead in fact died intestate. At the hearing the proponents objected to any evidence by the respondents for the reason they had not been granted additional time in which to file a defense. The probate court took this objection under consideration, but the journal entry discloses no ruling. That court found in favor of the proponents and ordered the will admitted to probate. The objectors appealed to the district court. At the trial in the district court the proponents moved that the answer and objection filed by Yates and Carter be stricken from the file. This motion was denied, and the issues presented were fully tried. The district court made findings of fact and conclusions of law which need not be set out at length. In a summary way it may be said the trial court found that Elizabeth Mead, at the time the will was made, was a very senile, sick old lady, weak in body and mind and that on October 4, 1948, (date of the will) she did not have mental capacity to know who were her relatives nor the nature and extent of her property. The trial court also found facts relating to the relationship between the Mc-Donalds and Elizabeth Mead, the manner in which the will was prepared and that it was prepared by attorneys for the principal beneficiaries. As a matter of law the trial court found that on October 4, 1948, Elizabeth Mead did not have capacity to make a valid will; that the will was prepared by attorneys of the principal beneficiaries; that in making the will Elizabeth Mead had no independent advice and the will should not be admitted to probate. The proponents’ motion to modify and vacate certain findings of fact, their motion to modify and make new conclusions of law and their motion for a new trial were each denied, and in due time they perfected an appeal to this court.
Appellees challenge the right of appellants to be heard in this court on some of their specifications of error for the reason no copy of their motion for a new trial was included in their abstract. The abstract, however, does show the journal entry denying the motion for a new trial, appellants have been permitted to file copies of the motion for a new trial and the appeal will be considered without diminution on that account.
Generally speaking, appellants have grouped their specifications of error and presented them under four questions. Before taking up those questions we note appellants’ contention that the trial court erred in not striking appellees’ answer and objections from the files for the reason they were belatedly filed in the probate court and not in conformance with G. S. 1947 Supp. 59-2210. In our opinion this contention cannot be sustained. Under G. S. 1947 Supp. 59-2408 the district court, in hearing an appeal from the probate court “shall allow and may require pleadings to be filed or amended.” That section further provides that the right to file new pleadings shall not be restricted by the failure to file pleadings in the probate court, nor shall the trial in or the issues to be considered by the district court be abridged or restricted by any failure to appear in the probate court. Not conceding that it is true, but assuming that appellants’ objection in the probate court was good, it did not prevent an appeal by the defeated parties. When the motion to strike the answer and objections was made in the district court and denied, the effect was to permit them to stand either as though they were ordered filed by that court or that appellees had made a request to then file the same.
Appellants’ first three questions pertain to whether the evidence disclosed that the McDonalds were the principal beneficiaries under the will; that they caused the will to be prepared; that the testatrix read or knew of the contents of the will and had independent advice with reference thereto. Consideration of these three questions however becomes unnecessary unless it be determined that the trial court erred in its conclusion that Elizabeth Mead did not possess testamentary capacity, and appellants recognize that for they state the principal question is whether the trial court was justified in accepting testimony of witnesses who did not see Mrs. Mead during the day of October 4, 1948, and not the testimony of six witnesses who saw Mrs. Mead on that day and all of whom testified she was mentally competent.
In a preliminary way it may be said there is no dispute that under our decisions the test of competency to make a will is that the testator know and understand what property he has, know about his relatives and others who may be the objects of his bounty and make disposition of his property with understanding and reason. See e. g. In re Estate of Gereke, 165 Kan. 249, 195 P. 2d 323; In re Estate of Cross, 166 Kan. 318, 201 P. 2d 1052, and cases cited. It is also settled that this court is concerned only with evidence that supports or tends to support the findings made by the trial court and not with evidence in conflict therewith and if there is substantial evidence to support the findings this court is precluded from disturbing them. See e. g. In re Estate of Walker, 160 Kan. 461, 163 P. 2d 359; In re Estate of Harris, 166 Kan. 368, 372, 201 P. 2d 1062, and cases cited.
To avoid the force of the last stated rule, appellants direct attention to the fact that the testimony of two witnesses consisted of reading the testimony given by them in the probate court and assert that it is the responsibility of this court to decide what the facts are from this evidence, citing In re Estate of Davis, 168 Kan. 314, 212 P. 2d 343, and In re Estate of Schippel, 169 Kan. 151, 218 P. 2d 192. Reference to those cases will disclose that in the trial in the district court, the only evidence offered was the transcript of the record made in the probate court. In such circumstances, we have held it is our duty to determine the facts. See In re Estate of Kemper, 157 Kan. 727, 734, 145 P. 2d 103, and cases cited. The rule contended for by appellants can have no application here for at least fifteen other witnesses testified personally to facts bearing on the testamentary capacity of Mrs. Mead. All of that testimony had to be considered by the trial court in determining the issue, and we may not review the testimony of the two witnesses introduced by reading a transcript of their testimony in the probate court and reach a contrary conclusion.
Ry reason of the issues raised by the pleadings the evidence covered not only the question of testamentary capacity, but also testimony tending to show or dispute exercise of undue influence, the fact a confidential relation existed between Mrs. Mead and the McDonalds, the circumstances leading up to the preparation of the will and as to its execution. Our resumé of the findings, while not complete, is generally limited to those parts dealing with testamentary capacity. The findings include the following:
Elizabeth Mead was an intelligent woman who had taught school many years. After her husband’s death she continued to live on the farm where they had lived for many years. At the time of her death she was about 83 years old. In her later years she had become senile and emaciated and although she had adequate clothing she dressed very poorly and subsisted on a meager diet. She used tin cans for cooking utensils and for night vessels and on occasions got them interchanged. On September 24, 1948, she went to the home of the McDonalds and remained there until her death. On September 26 she became very ill and a doctor was called. At that time her condition in addition to senility was an asthmatic condition from which she had suffered for years. The doctor’s treatment, among other things, included the administration of sedatives. She grew worse and on October 1 her life was despaired of, her breathing was labored, her mouth open, her eyes glassy and she was in a critical physical condition. On the evening of October 4 Mrs. Mead was very still. She kept pulling at the bed covers, reaching out to get something she imagined she saw in front of her, talking of a man with a big red nose in a chair, saw pictures on the wall. She was very ill and in bad shape both mentally and physically. When her niece appeared on October 2 and visited her on October 3, she confused her with her niece’s mother. Some of the time she recognized friends and some of the time she did not. A number of witnesses testified that in their opinion and particularly on October 4 she was incompetent and a number testified she was not, but it was clearly evident that she was a very senile, sick old lady, weak in body and mind. On the morning of October 4 Mrs. Mead did not have mental capacity to know who were her blood relatives nor the nature and extent of her property.
As has been heretofore stated, appellants moved to modify and vacate certain findings of fact, the motion being denied. We find it unnecessary to review this motion or the ruling at length. Insofar as mental capacity is concerned, most of the end sought was to have the trial court find favorably to the appellants’ contention or to have included matter which was rather immaterial to that issue. Insofar as the motion raised the question that the findings are not supported by the evidence, a review hereafter made of the evidence as included in the abstract and counter-abstract discloses ample support.
Appellants made no contention that the will was executed during a lucid interval on the part of Mrs. Mead, possibly for the reason that would be a concession of a lack of capacity before and after the event. Rather their contention seems to be that the objectors did not produce sufficient proof. They direct attention to a sentence in In re Estate of Smith, 168 Kan. 210, 212 P. 2d 322, reading:
“Appellants are correct in contending that while testimony concerning the mental condition of the testatrix shortly before and after the execution of the will may be considered, the evidence pertaining to her condition on November 25 is of primary importance.” (1. c. 215.)
and argue that six witnesses, who were present when Mrs. Mead executed the will testified that she was competent, while those testifying to the contrary did not see her between 6:00 a. m. and 6:00 p. m. of that day, and that therefore the testimony of the six that she was competent must be accepted. Rut in considering the testimony of those six witnesses, the trial court was permitted to and doubtless did give consideration to the fact that those witnesses included the two McDonalds, who were beneficiaries, their daughter and her husband, and the two witnesses to the will, both of whom had come to the McDonald home at the request of McDonald and his son-in-law, who testified he communicated Mrs. Mead’s wishes, expressed to him during the night of October 3, to a lawyer who drew the will. Insofar as the two witnesses to the will are concerned, it is clear they were present at the request of Mr. McDonald and possibly his son-in-law; that while they were present the will was not read to Mrs. Mead nor did she read it herself; that she signed the will and requested them to sign it and each did so; that nothing was said about the contents of the will nor about her property or relatives. Simply because the six witnesses so testified, was the trial court precluded from considering other evidence? We think not. On behalf of the appellants Dr. Hartwell, one of the witnesses whose probate court testimony was received in evidence, testified that he saw Mrs. Mead on October 2 and administered about one-sixth grain of morphine, phenobarbitol and ephedrine; that morphine is a narcotic and would cause her to become drowsy and sleepy and while she was under its influence she probably would not know anybody; that he saw her again on October 5; that he first saw her on September 26 and prescribed morphine, adrenaline and ephedrine, giving them all at the same time every four hours (other evidence disclosed Mrs. Mead was given these medicines every four hours at times here involved); that he saw her October 2 and there was a marked change for the worse. He recalled a conversation with Stella Allen, which he thought was later than October 5, in which he told her Mrs. Mead was of unsound mind; that there was quite a bit of time when she was mentally unsound and, “I don’t know when she commenced to get unbalanced to tell the truth about it.” The respondents offered the testimony of various witnesses, whose testimony will not be set forth in detail. None of them saw Mrs. Mead between the hours of 6:00 a. m. and 6:00 p. m. of October 4, but they did testify in detail to matters occurring just before and just after those hours and that she suffered from hallucinations; that in their opinion she did not have capacity to recognize her friends and relatives at all times; that she was in a bad way physically and confused mentally, and did not have capacity to make a will. Another medical witness, whose qualifications were admitted, in response to a hypothetical question to which no objection was made, testified that considering Mrs. Mead’s physical condition, age and the treatment given, on October 4, 1948, she probably would not be mentally competent to know her relatives and the nature and extent of her property.
The trial court had the entire picture before it. With the exception of two witnesses, it saw the witnesses, had an opportunity to note their interest in the outcome, observed their demeanor while testifying, and from all of the testimony decided the issue in favor of the objectors, and there being substantial evidence to warrant its findings, they are conclusive on appeal.
Appellants complain that the trial court erred in admitting incompetent evidence and in rejecting competent evidence. No specific claim is made as to admission of evidence. There is no showing that the claimed rejected evidence was produced on the hearing of the motion for a new trial' and the question is not properly before us. There .is some contention that cross-examination of witnesses was unduly restricted. We shall not make a detailed statement of the instances relied on as our examination of the record convinces us there was no ruling prejudicially erroneous.
As has been previously indicated, in view of our conclusion that the trial court did not err in finding that Mrs. Mead lacked testamentary capacity on October 4, 1948, it is unnecessary that we consider any questions as to undue influence or who was the principal beneficiary under the will.
The trial court did not err in finding that Elizabeth Mead lacked testamentary capacity on October 4, 1948, the date her purported will was executed, and its judgment denying probate of the will is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This appeal grows out of an attempt by the governing body of the city of Topeka to regulate the manner in which the Manor Baking Company (hereinafter referred to as plaintiff) is to operate and conduct its business in Topeka. Plaintiff's action, as originally brought, sought to declare the provisions of G. S. 1947 Supp. 12-2001, as amended by House bill 223 (being chapter 119, Laws of 1949) unconstitutional and void as applied to the business of plaintiff in Topeka, and asked for an injunction permanently enjoining defendant city from interfering with the conduct of its business by reason of its failure to apply for or obtain a franchise or other grant or privilege in accordance with and upon the terms and conditions specified in such statute. The action was later expanded into one for a declaratory judgment construing the statute in question, as amended, as the same would apply to a business such as plaintiff’s.
The parties entered into a written stipulation of facts which, briefly summarized or quoted, shows the following background of the present controversy:
Plaintiff is a Delaware corporation, with its address and principal place of business in Kansas City, Mo., and is duly licensed and authorized to transact business as a foreign corporation and to sue and be sued in the state of Kansas. It is engaged in the manufacture and sale of bread and other bakery products, and in January, 1949, applied to defendant city for a license authorizing it to conduct a retail store for the sale of bakery products and for authority to deliver in the city such products by its trucks from its salesroom in Topeka. Concurrently with its application it paid a license fee of $500, receiving the city treasurer’s receipt therefor, and was advised by the license collector that no additional license was necessary in order to operate its store or trucks to be used by it in the delivery of its products in the city.
In February, 1949, plaintiff remodeled a building in defendant city in which location it has been conducting a retail store for the sale of its products and from which place its delivery trucks operate over various routes in the city, selling and delivering bakery goods to its customers. It has filed its tax returns with the proper local authorities covering its stock of goods, trucks and other personal property.
Paragraphs 6 to 13, inclusive, of the stipulation of facts are as follows:
“6.
“Plaintiff now has in its employ in the conduct of its business in Topeka eighteen residents of the City, including a manager, an assistant manager, a saleswoman, and fifteen delivery-men operating its trucks.
“The plaintiff’s bakery goods sold in Topeka are baked in its bakery in Kansas City, Missouri, and from there within a few hours after baking are delivered by truck to its warehouse and retail store room in Topeka and are there is (sic) part transferred to the counters and shelves in the retail store for sale at the store room and in part transferred to the route trucks which start on their routes promptly after arrival of the bakery goods from Kansas City. Sales over the counter at Plaintiffs Topeka retail store are approximately equal in quantity to the sales made by one route truck.
“7.
“The plaintiffs trucks operating in Topeka are standard Chevrolet panel truck automobiles, length being 196 inches and weight of truck 3,425 pounds, having enclosed truck bodies neatly painted and bearing the name ‘Manor Baking Company’, the size and type of chassis being approximately the same as the ordinary type of pleasure or family automobile in use in Topeka.
“8.
“Each of plaintiffs trucks, after loading at the plaintiffs Topeka store room with bakery products, travels a specified route, all routes being located in residential districts. Upon these routes the plaintiff has established customers who rely upon the plaintiff for their regular supply of bread and other bakery products.
“9.
“The plaintiff has established sixteen routes throughout the City of Topeka. The average time it takes a driver to cover these routes is eight hours.
“10.
“Plaintiff’s drivers in an effort to secure new customers, make uninvited and unsolicited calls at the homes of prospective customers along their route, to solicit their business; if the prospective customer advises the driver that he does not wish to become a customer, the driver does not again stop at that home.
“11.
“If a customer, at his door, requires an item which the driver does not have in his basket containing bakery products, but does have out in his truck, the driver will then go to the truck, secure the item and bring it back to the customer’s door to sell it to him.
“12.
“Plaintiff’s drivers or route men call tri-weekly at tire doors of customers’ residences with a basket containing wrapped bakery products taken from the supply in the truck, the customer selecting and purchasing at the door such of said articles as she desires. Some of the customers have standing orders for deliveries of particular articles on specified days. Most of the sales are made at residence doors, for cash. However, upon satisfactory credit rating being established, sales on credit are not infrequently made. Occasionally a housewife will call out to stop a driver and will go to the curb and make a purchase at the curb.
“13.
“Sales of ice and of milk and cream to the housewife at residence doors are regularly made in Topeka by drivers of trucks of ice companies and of dairy companies, the type of truck used and the routes followed being similar to those of the plaintiff.”
House bill 223, heretofore referred to, having been passed by the 1949 session of the legislature and approved by the governor, was to become effective June 30, 1949. On June 6, 1949, counsel for plaintiff addressed a letter to the legal department of defendant city making inquiry concerning the city’s position with reference to its being necessary for plaintiff to obtain a franchise under the statute in question in order to continue the operation of its business within the city.-
Shortly thereafter, in a letter from the city attorney, counsel for plaintiff was advised that if the ordinance contemplated was adopted by the governing body of defendant plaintiff would be subjected to its prohibition and that in order to carry on its business it would be necessary to obtain a franchise, and that any contract entered into would necessarily be by ordinance and subject to all of the provisions set forth in House bill 223.
This action was then commenced.
In the court below no oral evidence was introduced and the case was submitted on the files and written stipulation of facts. For its findings of fact the court adopted the written stipulation of facts, and rendered the following conclusions of law:
“1. The provisions of House Bill 223, being now Chapter 119 of the Session Laws of 1949, if construed to require the plaintiff herein to obtain a franchise upon the conditions imposed therein, would violate the rights of tire plaintiff as guaranteed by the due process clause of the Fourteenth Amendment of the Constitution of the United States.
“2. Judgment should be entered permanently enjoining the defendants, and each of them, and all persons acting by, through or under them, or any of them, from interfering in any manner with the conduct of the plaintiff’s business by reason of its failure to apply for and obtain a franchise or other grant or privilege in accordance with and upon the terms and conditions specified in said statute.
“3. Judgment should be entered against the defendants for costs.”
Judgment was entered in accordance with the foregoing conclusions. Defendant city’s motion for a new trial being overruled, it has appealed, specifying as error each of the three conclusions of law rendered by the court.
Chapter 119, Laws of 1949, being quite lengthy, will not be quoted in full, but is incorporated herein by reference. The first paragraph of section 1 of the act reads:
“Section 1. Section 12-2001 of the General Statutes Supplement of 1947 is hereby amended to read as follows: Sec. 12-2001. The governing body of any city may permit any person, firm or corporation to manufacture, sell and furnish artificial or natural gas light, and heat, electric light, water, power or heat, or steam heat to the inhabitants, and to build street railways, to be operated over and along or under the streets and public grounds of such city, and may permit the construction and operation of telegraph and telephone lines, and the laying of pipes, conduits, cables, and all appliances necessary for the construction and operation of gas and electric-light and steam-heat plants, and electric railways, or bus companies, and the laying of pipes for the operation of a water plant for the distribution or furnishing of water, over, under and along the streets and alleys of such city, and may grant to any person, firm, corporation or partnership the right to use the streets in the carrying on of any business which is not prohibited by law wherein said business is primarily conducted on the streets of any city of the state of Kansas, upon the express conditions hereinafter imposed, and not otherwise, in this act to wit:” (Italics ours.)
The italicized portion above quoted is the 1949 amendment. In all other respects the entire act is identical with G. S. 1947 Supp. 12-2001 and 12-2002.
In addition to the above, die act provides that all contracts granting any such original franchise, right or privilege, shall be by ordinance and not otherwise; that no contract, grant, right, privilege or franchise shall be extended for any longer period of time than twenty years from the date of such grant or extension; that the city may fix a reasonable schedule of maximum rates to be charged by the franchise-holder for the sale of its services; that the city may impose fixed charges as a condition for the granting of such franchise, which may consist of a percentage of the gross receipts derived from the service permitted by the franchise, with the duty on the part of the franchise-holder to report at six-month periods to the city all gross receipts collected during such period and to pay into the treasury of the city the percentage thereof fixed by the ordinance; and that such franchise grant is in no event to be effective until sixty days after the franchise ordinance has been published for three consecutive weeks, the franchise to be subject to annulment by vote of a majority of electors voting in a special election to be held at the expense of the franchise applicant in the event such special election is petitioned for during such sixty-day period by twenty percent of the legally qualified voters of the city who voted for mayor at the last preceding city election.
Plaintiff frankly concedes that such terms and conditions are valid and proper in franchise ordinances pertaining to public utilities, but that as applied to a business strictly private in nature, such as is contended we have here, would impose upon it such unreason able obligations and restrictions as to be unconstitutional and void. A major portion of the briefs of both parties is devoted to a discussion of this phase of the question, but, for our purposes and in order to reach a proper decision, we do not deem it necessary to go into the precise question in detail.
In numerous decisions of this court it has been uniformly held that G. S. 1947 Supp. 12-2001 (and its predecessors) has application only to public utility franchises and that it covers a sphere of municipal authority entirely separate and distinct from ordinances licensing and regulating private users of the streets. (O’Neal v. Harrison, 96 Kan. 339, 343, 150 Pac. 551, L. R. A. 1915F 1069; State, ex rel., v. City of Coffeyville, 138 Kan. 909, 912, 28 P. 2d 1032; Peoples Taxicab Co. v. City of Wichita, 140 Kan. 129, 137, 34 P. 2d 545, 95 A. L. R. 1218; Home Cab Co. v. City of Wichita, 140 Kan. 451, 36 P. 2d 1012; City of Wichita v. Home Cab. Co., 141 Kan. 697, 700, 42 P. 2d 972.)
Such being the case, what then is the effect of the 1949 amendment? Both before and after (the amendment) subdivision seventh of the act reads:
“All contracts, grants, rights, privileges or franchises for the use of the streets and alleys of such city, not herein mentioned, shall be governed by all the provisions of this act, . . .”
In State, ex rel., v. City of Coffeyville, supra, in construing this provision, it was said:
“The state urges that subdivision seventh closés tire door against all grants of use of streets except by ordinance.
“Subdivision seventh in effect declares that if the previous enumeration of grants for use of streets is not complete, other grants shall be subject to all the conditions attending grants for the enumerated purposes. That must necessarily mean if the conditions are appropriate. To be appropriate, the purpose must be of a public nature, and not administrative merely.
“. . . Purchase of fuel is purely administrative business, use of the streets merely facilitated delivery, and to avoid absurdity it is necessary to hold that subdivision seventh operates in the same field as the remainder of the section, file field of public, governmental activity.” (pp. 912, 913.)
We again quote the amendment, it being in the first paragraph of the act:
“and may grant to any person, firm, corporation or partnership the right to use the streets in the carrying on of any business which is not prohibited by law wherein said business is primarily conducted on the streets of any city of the state of Kansas.”
The city contends that by virtue of the amendment the statute is no longer limited in application to public utilities and that its scope is now clearly extended so as to include any business which is not prohibited by law.
On the other hand, plaintiff argues that the language of the amendment is no broader than subdivision seventh of the act, above quoted; that the amendment really added nothing, and that while the language of such provision (seventh) was broad enough to require that all rights and privileges for the use of the streets must, be by ordinance and must be subject to all of the conditions named in the statute, the sense of such subdivision must, to avoid absurdity, be held to embrace only those persons or corporations engaged in public utility business.
And so we have this situation: If the 1949 amendment be held not to have added anything to the statute as it formerly existed, then there should be no interference with plaintiff’s private business by reason of its failure to comply with a statute having application only to public utilities. On the other hand, if the city’s contention, that by virtue of the amendment the statute is no longer limited in application to public utilities and that its language clearly extends the scope of the statute to include the power to grant the privilege of using the streets in conducting lawful private business such as plaintiff’s, be correct, then we are at once confronted with the provision of section 16 of article 2 of the state constitution, which provides that:
“No bill shall contain more than one subject, which shall be clearly expressed in its title, . . .”
The title of the amended statute, chapter 119, Laws of 1949, reads:
“An Act relating to cities, and pertaining to franchises and to the granting thereof, amending sections 12-2001 and 12-2002 of the General Statutes Supplement of 1947, and repealing said original sections.”
We find nothing in the title to suggest that with the passage of the bill there was combined in the one statute the old field of public utility franchises with a new field granting to cities the power to grant the privilege to use the streets in conducting any lawful private business, such as we have here. The amendment, if given the force and effect contended for by die city, clearly would be outside of and foreign to the title of the bill, thus rendering the act unconstitutional and void.
In either event plaintiff would be entitled to the relief prayed for and which was granted by the lower court, and its judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an injunction action. The appeal is from two orders of the district court, one overruling defendants’ motion to dissolve a restraining order and to deny a temporary injunction and the other overruling their demurrer to the plaintiff’s petition.
The issues involved must stand or fall upon the contents of the petition. For that reason such pleading will be quoted in toto. It reads:
“1. That the plaintiff resides at 2605 North Arkansas, Wichita, Sedgwick County, Kansas, a more particular description of said property being as follows, to-wit: (Here follows description of premises).
“2. That said property was formerly owned by the plaintiff’s deceased husband, E. H. Cooley, and that the said E. H. Cooley died intestate at Wichita, Kansas, on or about May 7, 1933, leaving as his only heirs at law the plaintiff, his widow, and the defendant, Moneta Shepherd, his daughter.
, “3. That there has been no administration of the estate of the said E. H. Cooley, and that no administration is necessary.
“4. That said property was the homestead of the said E. H. Cooley and this plaintiff prior to and at the time of his death and has continued to be the homestead of the plaintiff ever since and is still her homestead, and that she has the right to possession of the same.
“5. That approximately eight years ago, the exact date now being unknown to this plaintiff, the defendant, Moneta Shepherd, who is the daughter of the plaintiff, and the defendant, Vernon Shepherd, who is the husband of the defendant, Moneta Shepherd, also moved into and upon said property and continue to reside there.
“6. That on numerous and repeated occasions during the past eight years and up to the present time, the defendants, and each of them, have mistreated, abused and threatened the plaintiff, in that they have cursed at her, attempted to restrict her quarters, told her that they hoped she died, shook their fists in her face, told her that they were going to have her adjudged insane, and have by other remarks and actions attempted to force the plaintiff from said property and interfered with her possession of the same.
“7. That the plaintiff has on numerous and repeated occasions requested the defendants to cease so mistreating, abusing and threatening her, and to move out of her home, but the defendants continue to mistreat, abuse and threaten the plaintiff, as heretofore alleged, and refused and still refuse to move from said property.
“8. That the plaintiff is seventy-three years of age and in ill health, and that she is unable to bear further mistreatment, abuse and threats by the defendants without serious and irreparable damage to her physical and mental condition.
“9. That she believes the defendants will continue to mistreat, abuse and threaten her so long as they continue to reside in said property.
“10. That said actions of the defendants constitute a nuisance; that the plaintiff has no adequate remedy at law; and by that reason of the foregoing, the plaintiff is entitled to have the defendants, and each of them, restrained and enjoined from mistreating, abusing and threatening her and from continuing to reside in said property and from interfering with her possession of the same.
“Wherefore, the plaintiff prays that she be granted a restraining order, temporary injunction and permanent injunction restraining and enjoining the defendants, and each of them, from mistreating, abusing and threatening her and from continuing to reside in said property so long as the same remains the homestead of the plaintiff, and from interfering with the plaintiff’s possession of said property; that she have such further equitable relief as to the Court may seem proper, and that she have judgment for the costs of this action.”
At the time of the filing of the foregoing pleading the district court issued .a restraining order. Pertinent portions thereof read:
“It Is Further Ordered that in the meantime and until the further order of the Court, the defendants be and they are hereby restrained and enjoined from mistreating, abusing, threatening or in any other manner molesting the plaintiff and from interfering with her possession of the property known as 2605 North Arkansas, Wichita, Kansas, and more particularly described in said petition.”
On the same date the district court granted the restraining order it directed that the application for a temporary injunction be heard on October 7, 1949. For some reason that hearing was not held and so far as the record discloses no temporary injunction has ever been granted by the district court.
Following the action by the court, as heretofore related, the defendants moved to dissolve the restraining order and deny a temporary injunction on grounds (1) the court was without jurisdiction, (2) the petition did not state facts sufficient to authorize the issuance of an injunction, and (3) the plaintiff had an adequate remedy at law. This motion was overruled and the defendants were given ten days to plead to the petition. Defendants then demurred to the petition on grounds (1) it disclosed upon its face the court had no jurisdiction of the subject of the action and (2) it failed to state facts sufficient to constitute a cause of action against the defendants and in favor of plaintiff. This demurrer was overruled. Thereafter the defendants perfected this appeal.
At the outset the issues can be simplified by stating the only ground of the appeal requiring attention is the one involving the order overruling the demurrer to the petition. Our decisions are all to the effect there can be no appeal from an order vacating or refusing to vacate a mere restraining order (Smith v. City of Kansas City, 167 Kan. 684, 208 P. 2d 233, and cases there cited). We ' doubt there is any authority under our statute G. S. 1935, 60-3302, for an appeal from an order denying a defendant’s motion to deny a temporary injunction. However, the point need not be labored . or decided. The very most that can be said for it is that it challenges the sufficiency of the petition and hence raises the same questions as the demurrer.
The appellants insist that an examination of the petition discloses this is an action between two tenants in common, namely, the appellee and her daughter, Moneta Shepherd, who own and, with equal rights of possession, are in the joint possession of the involved real estate, wherein one cotenant, the appellee, asserts a homestead interest and seeks to enjoin and exclude the other co-tenant and her husband, the appellants, from possession of the property. If this were all that is to be found in the petition there would be much merit in appellants’ claim respecting the failure of the challenged pleading to state a cause of action for injunctive relief. We have no quarrel with the rule (Cole v. Coons, 162 Kan. 624, 178 P. 2d 997) that when real property is owned by tenants in common, with equal rights of possession, one cotenant cannot establish a homestead right therein as against the interests of other cotenants. The trouble with appellants’ position is that they fail to recognize and give force and effect to other allegations of the petition.
Upon careful analysis of the petition which, we pause to note was never attacked by motion to make more definite and certain, it clearly appears (see ¶¶ 6 and 10) that one of the grounds on which appellee based her cause of action for injunctive relief was interference by the appellants with her right to possession of the premises. In this connection it is interesting to note that she not only prayed for relief of that character but that her request with respect thereto was recognized by the trial court which, in issuing its restraining order, merely enjoined the appellants from interfering with her possession of the property.
The legal principles applicable to determination of sufficiency of a pleading on demurrer are so well established by our decisions as to hardly require restatement. They are well defined in Downey v. Phillips, 137 Kan. 362, 20 P. 2d 453, where it was held:
“Where a demurrer is filed to a- petition on the ground that it does not state a cause of action, without first presenting a motion to have the allegations of the petition made more definite and certain, the allegations of such petition will be liberally construed in favor of the pleader.
“A petition containing the necessary allegations to advise the defendant of the claim against him and of the relief demanded is good on demurrer although stated in an awkward and unskillful manner.” (Syl. ¶¶ 1, 2.)
See, also, Owens v. Deutch, 156 Kan. 779, 137 P. 2d 181; Jones v. Rainbolt, 162 Kan. 353, 176 P. 2d 855, and cases there cited to the same effect.
The fact that appellee asked for more relief than that to which she may be entitled under the existing facts and circumstances as pleaded did not make her petition subject to demurrer.
Long ago in Updegraff v. Lucas, 76 Kan. 456, 93 Pac. 630, we held:
“A petition which otherwise states a cause of action is not subject to a demurrer for the reason that it seeks to recover more or different relief than that to which plaintiff is entitled.” (Syl. f 1.)
See, also, Atherton v. Goodwin, 163 Kan. 22, 29, 180 P. 2d 296; Joint Consolidated School Dist. No. 2 v. Johnson, 163 Kan. 202, 210, 181 P. 2d 504.
It must be remembered, as we have heretofore indicated, that as a tenant in common the appellee had the same rights to possession of the premises described in her petition, and to each and every part thereof, as the appellants. By course of conduct set forth in the petition, she charged the appellants with having attempted to restrict her quarters and having interfered with her possession of the premises. That proof of such interference would entitle her to injunctive relief cannot be questioned. Therefore, when tested by the foregoing rules, we believe a careful analysis of the allegations of the petition, even though they were not as definite and certain as they might have been and notwithstanding they asked for more relief than appellee may have been entitled to, compels the conclusion the trial court did not err in overruling that portion of the demurrer based on the ground the petition failed to state a cause of action for injunctive relief.
From the conclusion just announced it necessarily follows the court did not err in overruling the first ground of the demurrer challenging jurisdiction of the trial court over the subject matter of the action. It should be noted, however, appellants’ entire argument on this point is predicated upon the premise the petition shows upon its face appellee had an adequate remedy at law, namely the right to partition the real estate. The answer to this argument is obvious. The involved property had been the home of the appellee for many years. For sentimental reasons, or others which need not be mentioned, she may have desired to continue to occupy it as such. If so, she had a right to enjoin the appellants from interfering with her rights of possession without resorting to some other action which might result in complete loss of the home in which she had lived for so long.
We fail to find anything in the record to warrant a reversal of the trial court’s action in overruling the demurrer to the petition. The result is its judgment must be affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is a divorce case and is -the second chapter in this court of the marital difficulties of the parties.
An action for divorce on the grounds of extreme cruelty and gross neglect of duty was originally instituted by the husband. The de fendant in her answer and cross-petition denied the charges and sought a judgment for separate maintenance. At the close of plaintiffs evidence defendant demurred on the ground that it failed to establish a cause of action, and in support thereof contended (1) that the evidence failed to establish either of the grounds relied upon even if acts pertaining thereto had been corroborated, and (2) that evidence of such acts was not corroborated. The demurrer was overruled and the court granted plaintiff a divorce. Defendant appealed from the order overruling her demurrer and we reversed the ruling of the lower court on the ground there was a failure of corroboration, as required by statute. (Walton v. Walton, 166 Kan. 391, 202 P. 2d 197.)
Our opinion in that case was filed January 22, 1949, and on January 25, 1949, the husband filed another action for divorce alleging gross neglect of duty, extreme cruelty and abandonment. Defendant’s motion to dismiss the second action on the ground there was another action pending in the same court, between the same parties and for the same cause, being overruled, the matter came on for healing and by agreement of the parties defendant’s cross-petition for separate maintenance pending in the former case and plaintiff’s petition for divorce in the second case were consolidated for the purpose of trial.
Plaintiffs testimony in support of his allegation was substantially the same as given by him in the trial of the former action, as outlined and summarized in Walton v. Walton, supra, and in addition thereto he testified concerning the alleged abandonment by his wife. Plaintiff’s son testified, in substance, that he lived approximately one block from his father’s home; he had seen his father practically every day for the past eighteen months; plaintiff and defendant had not lived together as man and wife from December of 1947 to January of 1949; he was present with his father when they discovered that defendant had moved from the home; they found the house locked and upon entering found that all of defendant’s furniture had been moved out and the keys to the house left on the kitchen table. He further testified that he had visited the. house on two or three occasions while plaintiff and defendant were living together; on the first occasion defendant’s bed was in the front bedroom, but on his next visit he noticed that it had been moved to another bedroom and plaintiffs bed had been placed back in the front bedroom; his association with the plaintiff had been such that lie would have known if plaintiff and defendant had lived together as man and wife since the latter part of December, 1947, and that from such association he knew they had not so lived together.
The defendant’s demurrer to plaintiff’s evidence was overruled, whereupon she introduced her evidence.
At the conclusion of the trial, and after the court had taken the matter under advisement for several days, judgment was rendered granting plaintiff a divorce on the grounds of gross neglect of duty and abandonment, and the cross-petition of defendant for separate maintenance was denied.
The defendant did not file a motion for a new trial, but in due time appealed “from the judgment and decree rendered and made in the above entitled action on July 23, 1949, wherein the court entered its decree by which plaintiff was divorced from defendant.”
The appellant (defendant below) assigns four specifications of error, namely, that (1) the trial court erred in overruling her motion to dismiss plaintiff’s petition; (2) the trial court erred in.overruling her demurrer to plaintiff’s evidence; (3) plaintiff’s evidence did not establish either gross neglect of duty or abandonment; and (4) there was no corroboration offered to sustain either of those two grounds.
Concerning the first ground relied upon by defendant for reversal it is argued her motion to dismiss plaintiff’s petition was equivalent to a demurrer under the provisions of G. S. 1935, 60-705 [Third], On the other hand, plaintiff contends the motion was nothing more than what in law is designated as a dilatory plea and that in the absence of a motion for a new trial the ruling of the court below is not subject to appellate review, citing Morgan v. Morgan, 146 Kan. 880, 73 P. 2d 1105. We will not labor the question, but in passing take note of the fact that our decision in Walton v. Walton, supra, which was filed several days prior to the commencement of the instant action, held that the demurrer to plaintiff’s evidence in the former action should have been sustained, and the effect of that decision, insofar as the plaintiff was concerned, was to dispose of that lawsuit. Furthermore, there was nothing appearing on the face of the petition in the second action showing that there was another action pending between the parties for the same cause. Defendant’s motion to dismiss the petition in the second action was properly overruled.
We come now to the question whether defendant’s demurrer to the evidence was properly overruled, and at the outset we are confronted with plaintiff’s contention that the matter is not within the scope of appellate review in the absence of a motion for a new trial or an appeal from the order overruling the demurrer. As heretofore stated, no motion for a new trial was filed by defendant and she appealed only from the judgment and decree granting a divorce to plaintiff.
In support of his contention plaintiff cites a number of cases decided prior to the effective date of G. S. 1947 Supp. 60-3314a, among them being Benson v. Rosebaugh, 128 Kan. 357, 278 Pac. 41, and Rierson v. Southern Kansas Stage Lines Co., 146 Kan. 30, 69 P. 2d 1. He also calls our attention to certain language found in the opinion in In re Estate of Spark, 168 Kan. 270, 212 P. 2d 369, wherein it is stated:
“There being no appeal from the trial court’s order overruling respondent’s demurrer to claimant’s evidence, it is not a proper matter for review by this court.” (p. 275.)
and to Jelinek v. Jelinek, 161 Kan. 362, 168 P. 2d 547, in which it is said that:
“. . . in the absence of a motion for a new trial the questions which this court can consider are those only which arise upon the pleadings and upon the facts found.” (p. 363.)
In the latter case it does not appear that a demurrer was filed and hence the specific question was not involved. In the Spark case, supra, it is noted that the quoted language is broader than the law of the case as stated in paragraph one of the syllabus, which is to the effect that in order to obtain a review of an order overruling a demurrer to the evidence the notice of appeal must be sufficiently broad to cover such ruling. We believe the language quoted to be an inadvertent overstatement of the correct rule and to such extent it is disapproved.
Plaintiff concedes that by statute (G. S. 1935, 60-3302) a ruling on a demurrer is an appealable order even in the absence of a motion for a new trial, but argues that it is necessary to appeal from such ruling in order to bring it up for review.
While the scope of appellate review, in the absence of a motion for new trial, has been variously stated, depending upon the nature, facts and circumstances of the particular case under consideration, we think that plaintiff’s interpretation of our decisions is too narrow. For example, in In re Estate of Peirano, 155 Kan. 48, 122 P. 2d 772, it was said:
“The appellee argues that this question is not properly before this court because the appellant appealed only from the judgment and not from the order overruling the demurrer of appellant to the evidence of appellee. We have heretofore held that where the appeal is from the judgment we will consider the question of whether or not the trial court committed error in overruling a demurrer of defendant to the evidence of plaintiff. (See G. S. 1941 Supp. 60-3314a; also, Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720.) We will, therefore, examine the question of whether or not this demurrer should have been sustained.” (p. 50.)
and in McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 122 P. 2d 787, this court held:
“There remains the question of the effect of the appeal being taken from the judgment and not from the order overruling the motion for a new trial. The appeal from the judgment gave us jurisdiction to review the action of the trial court in overruling the demurrer of the defendant to the evidence of plaintiff. This action of the trial court is one of the grounds relied upon by defendant for reversing the judgment. (See G. S. 1941 Supp. 60-3314a; also, Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720.)” (p. 115.)
Again, in Stinson v. McConnell, 160 Kan. 1, 159 P. 2d 406, the rule was stated in the following language:
“It is never necessary for the party against whom the ruling is made to file a motion for a new trial as a basis for appeal from an order sustaining or overruling the demurrer to the evidence. In cases where the ruling on the demurrer precedes a judgment and the appeal from the judgment is taken in time, this court will consider any possible error arising by reason of the ruling on the demurrer even if no separate appeal has been taken provided such possible erroneous ruling is one of the specifications of error. (Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720.)” (p. 3.)
Here the ruling on the demurrer preceded the judgment, the appeal from the judgment was taken in time, and the alleged erroneous ruling (on the demurrer) was one of the specifications of error.
We hold that the ruling on the demurrer to plaintiff’s evidence is properly before us for review.
As heretofore stated, plaintiffs testimony was substantially the same as given by him at the trial of the former action, all of which is set out in Walton v. Walton, supra, and will not be repeated here. In that case we did not hold that plaintiff’s testimony fell short of making out a cause of action for divorce. The basis of our decision was that there was a lack of corroboration as required by the statute (G. S. 1935, 60-1509). In the case now before us, however, we are concerned with a different situation and we are constrained to hold that the testimony of plaintiff’s son, hereinbefore summarized, satisfied the requirement of the statute and that defendant’s demurrer to the evidence was properly overruled, at least so far as the ground of gross neglect of duty is concerned.
For all practical purposes this really disposes of this appeal, but we take note of the fact that defendant contends there was a total lack of proof as to the abandonment feature of the case. Conceding, for the sake of argument, that there is merit to her contention in this respect — nevertheless her appeal was “from the judgment and decree rendered ... by which plaintiff was divorced from defendant,” and we have already held that the court did not err in finding that the ground of gross neglect of duty had been established.
It therefore follows that the judgment of the lower court should be and the same is hereby affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff appeals from the ruling of the trial court sustaining defendant’s demurrer to her petition and its motion for judgment on the pleadings and on her opening statement.
In view of the trial court’s ruling and the arguments presented on this appeal, recitation of the allegations of the petition is limited.
In her petition plaintiff alleged that the highway on which the accident occurred was a county road, and that the county had notice in excess of five days of the defects in the highway because of its performance of roadwork thereon and because the county engineer was notified of the condition of the highway; that plaintiff, riding in an automobile driven by her husband, and without contributory negligence on her part, was proceeding north on the highway on September 3, 1947, at about 11:00 o’clock p. m. and first noticed a light or flare placed upon a pile of gravel located in the highway and that the pile of gravel and other piles were placed in the highway at successive intervals; that the piles of gravel obstructed the use of the highway to some extent but the highway was used by persons traveling upon it; that about two hundred yards from the first flare and north thereof, is a culvert in the road, the dimensions of which were unknown to plaintiff, which culvert had been installed several years prior to September 3, 1947; that the culvert was defective in that it was not of sufficient width to carry the travel on the highway, did not have proper guideposts or markers showing the location and presence of the culvert, and that the highway and culvert were defective in that the defendant placed on the highway piles of gravel on the culvert without leaving sufficient space on the right hand or east side of the culvert so as to enable users of the highway to pass over and across the culvert; that no signs of warning of the condition of the highway or the presence of the culvert were ever placed in the highway or on the culvert to apprise users of the highway of the presence of the culvert and the ditch and chasm directly adjacent to and below the culvert. It was further alleged that when plaintiff reached the culvert, without notice or knowledge of its existence, the right front wheel dropped into the open space directly east of the culvert at a time when the left front wheel of the automobile was elevated due to the presence of the pile of gravel on the culvert, causing the automobile to be overbalanced and to turn over to the east and fall into the ditch. Allegations, as to the extent of plaintiff’s injuries need not be noted nor do we need notice subsequent pleadings.
At the trial plaintiff’s counsel made her opening statement, at the conclusion of which defendant moved for judgment on the pleadings and opening statement. Apparently from the remarks of the trial court included in the abstract, a demurrer to the petition had been submitted previously and overruled for the trial court, after stating the petition confined itself to and relied upon alleged negligence in failing to place warning signs and guardrails on the culvert, held that the alleged negligence did not come within the provisions of G. S. 1935, 68-301, and sustained the demurrer. The journal entry recites that the court sustained the demurrer and rendered judgment on the pleadings and opening statement in favor of the defendant. From those rulings the plaintiff appeals.
On the assumption that appellee procured the rulings of the trial court in its favor for the same reasons as are now asserted by it in this court, we note first that no contention is made that appellant, in her opening statement, made any statement or admission that precluded recovery by her, and our exami nation of the opening statement discloses none that would have that effect, and under our decisions, Rodgers v. Crum, 168 Kan. 668, 673, 215 P. 2d 190, and cases cited, appellee was not entitled to judgment unless the petition failed to state a cause of action.
Preliminary to noting appellee’s contention that the petition did not state a cause of action against the county, we note that the statute fixing the county’s liability, if any, arises under G. S. 1947 Supp. 68-301, which in part reads:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located . . .”
By reason of reference later to decisions bearing on the liability of the state for defects in state highways we note that the statute fixing the state’s liability (G. S. 1935, 68-419) is almost identical with that quoted above.
Appellee directs attention to allegations that the culvert was defective in that it was not of sufficient width to carry the travel on the highway, did not have proper guideposts or markers to show its location and presence, and that proper guardrails were not installed or other signs placed warning of the presence of the culvert or ditch, and that the highway and culvert were defective in that the defendant placed piles of gravel upon the culvert without leaving sufficient space so as to enable users of the highway to pass over the culvert, and contends that the allegation the culvert was defective in that it was not of sufficient width to carry the travel does not allege any defect, and that it is apparent plaintiff attempted to base her cause of action upon R. S. 1923, 68-1110, which provided for guardrails on county bridges and culverts, but which section was repealed by Laws 1935, Ch. 250. Picking out of the context those allegations referring to guardrails on and warning signs of the culvert, appellee says, “In brief, appellant states that had the county installed guardrails or narrow bridge warning signs the accident would not have occurred” and our attention is directed to Sell v. McPherson Township, 152 Kan. 731, 107 P. 2d 670, where it was alleged the defects in the road were failure to maintain a culvert of adequate width; failure to clean out weeds at the ends of the culvert instead of mowing over them, creating the appearance of a well maintained shoulder; failure to erect warning signs and failure to erect railings or place posts at the ends of the culvert. These allegations were held not to constitute allegations of defects, the court saying:
“It should be kept in mind that the only basis for imposing liability on a township for an accident happening on a township road is the township’s failure to conform to the statutory requirements for their construction and maintenance. Liability is not imposed as for common-law negligence. And whether a public road is defective within the meaning of the statute (G. S. 1935, 68-301) is a question of law, when, as here, there is no controversy over the facts.” (Citing cases.)
Without quotation therefrom appellee also cites Wilson v. Barber County Comm’rs, 154 Kan. 525, 119 P. 2d 502, and Blessman v. State Highway Comm., 154 Kan. 704, 121 P. 2d 267, in which petitions were held insufficient, but where the facts pleaded were materially different than are presently before us.
Appellee concludes its argument by stating that it is apparent appellant has rested her case upon a statutory requirement that no longer exists, and that the liability of the county being purely statutory the plaintiff failed to state a cause of action.
If the allegations of the petition were as limited as appellee’s review of them would make them appear to be, then the decision and judgment of the trial court was correct. That they were not so limited will be discussed later.
No citation of authority is necessary to show that the liability of the county for any defects there may be in the county road is that fixed by the statute, a quotation from which is made earlier herein. Neither is it necessary that we now make an extensive review of our many decisions discussing what may constitute a defect.
In Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946, where the claimed defects were holes in the highway, and where the question considered was what constituted a defect, this court said:
“A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect.” (1. c. 813.)
That statement is cited with approval in the following subsequent decisions: Houdashelt v. State Highway Comm., 137 Kan. 485, 491, 21 P. 2d 343; Douglas v. State Highway Comm., 142 Kan. 222, 226, 46 P. 2d 890; Hill v. State Highway Comm., 143 Kan. 129, 134, 53 P. 2d 882; Neiswender v. Topeka Township, 148 Kan, 113, 115, 79 P. 2d 839; and Brock v. State Highway Comm., 157 Kan. 252, 255, 139 P. 2d 811.
In Neiswender v. Topeka Township, supra, a petition charging as a defect in the highway an abrupt, precipitous drop in the highway, the decline being extremely rough and unéven, was under consideration. The court analyzed some of our decisions, stating:
“The petition before us alleges that the deceased was proceeding along the road in a prudent and careful manner and that when he reached the abrupt drop or decline in the road the automobile was precipitated into the air, and when it reached the ground it turned over and 'rolled down the drop into the deep ditch along the roadway. These allegations, together with the allegations as to the steep, abrupt and precipitous decline of the road, and the absence of warning signs or signals, we think fairly charge that the defective condition of the road was' tire legal and proximate cause of the death of the deceased. (Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762; Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106.)” (1. c. 117.)
In Brock v. State Highway Comm., supra, the court considered a petition alleging that defendant placed a dangerous obstruction at a point on the highway near the peak of a hill where vision was restricted in that it placed a ridge of dark sand and other sand upon a portion of the highway so as to restrict the width of the highway open for travel, all as more fully shown in the opinion, and that there were no stop signs, warning signs or signs of any kind to advise the traveling public of the dangerous condition of the highway nor to warn the traveling public of the dangerous and defective condition of the highway as it existed where the accident occurred. The court reviewed some of our decisions and, affirming a ruling of the trial court, held that the petition stated sufficient facts concerning the condition of the highway as to constitute it a defective highway.
It may be conceded that the allegations that the culvert was not of sufficient width to carry the travel and that it did not have any guardrails or other warnings were not allegations of any defect. The statute fixing liability provides that plaintiff must be without negligence and that such allegations were proper to support her allegation she was without fault does not mean, as assumed by appellee, that that alone was a charge of defect in the highway or in the culvert. The petition, however, clearly alleged the placing of piles of gravel in the highway and on the culvert without leaving sufficient space on the east side to enable travelers to pass over and across the culvert, the presence of which was not made known by any warning signs, and that as plaintiff proceeded northward the left front wheel of the automobile struck the gravel pile on the culvert, the right front wheel went off the culvert and the automobile went into the ditch. Under the allegations the fact the culvert was narrow or that it was without warning signs cannot be dissociated from the fact that there was a pile of gravel in the highway of which no warning was given. An entirely different situation would be presented had there been no gravel pile in the highway, but that the gravel pile in the highway rendered the highway dangerous and a defect may hardly be debated under our decisions. It is not contended that the gravel pile was not a proximate cause of the accident and we shall not commenl on that phase.
The ruling and judgment of the trial court are reversed and the cause is remanded with instructions to overrule the demurrer and the ruling on the motion for judgment and for further proceedings not inconsistent herewith. | [
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The opinion of the court was delivered by
Smith, J.:
These two appeals arise out of petitions and cross petitions filed to recover damages alleged to have been sustained by various parties when a rail motorcar, which some of the parties refer to as an electric handcar, being operated on the tracks of the Chicago, Rock Island and Pacific Railway Company, collided with an automobile being operated on the public highway at a point where the railway tracks cross the highway. The appeals are from orders sustaining motions for judgment on the pleadings.
For the sake of clarity it will be stated that four parties were involved in the collision. They were Wendel, who was operating his automobile on the highway, Bickett and Colvin, employees of the Rock Island, who were on the handcar, and the Rock Island. We shall refer to the car on the railroad tracks as a handcar.
The first to file an action was Bickett, who sued Wendel for damages, alleging eleven grounds of negligence on the part of Wendel. Wendel answered, denying first that he was negligent, and alleging that Bickett was in charge of the handcar, being operated by him for the Rock Island, and that if he was injured it was due to the negligence of Bickett himself in the three particulars set out. This answer also contained a paragraph, as follows:
“Further answering defendant, Paul E. Wendel, states and alleges that sometime subsequent to said collision plaintiff, Del W. Bickett, for a consideration executed a general release releasing all persons, firms or corporations who were or might be hable to him for any claim, demands, controversies, actions or causes of action on account of injuries to himself (Bickett) resulting from or growing out of said collision.”
Wendel also filed a cross petition against Bickett and the Rock Island. In this he alleged that Bickett was employed by the Rock Island and at all times he was acting within the scope of his employment; that at the time of the collision Bickett was in charge of and had control of the handcar and it was being manually operated by Colvin; that at the time of the collision Bickett was approaching the highway on the handcar and the rules of the company required all handcars to be brought to a complete stop before crossing a public road and to give a hand signal before crossing; that Wendel was aware of these rules and relying on them started to cross the tracks; that Bickett proceeded across the highway without coming to a full stop; that the proximate cause of the collision was the negligent conduct of Bickett, Colvin and the Rock Island. He asked judgment against Bickett and the Rock Island.
Summons was served on the Rock Island, and after some preliminary motions it filed an answer to this cross petition. This answer was first a general denial, then an admission of the collision and a statement that the handcar was being manually operated by Colvin with Bickett as a passenger, a denial that either Bickett, Colvin or the Rock Island were negligent and a statement that Wendel was negligent in some five particulars. The answer also contained a paragraph, as follows:
“Defendant further alleges that subsequent to the date of said collision, the said Paul E. Wendel and lames M. Colvin entered into a certain release in full of all claims, a copy of said release being hereto attached, marked defendanfs Exhibit ‘A’ and made a part hereof as though fully set out herein.”
The release spoken of in the above paragraph was attached to the answer as an exhibit. On account of Bickett’s death, his widow was later substituted and filed an unverified reply to Wendel’s answer not under oath. Wendel did not file any reply to the Rock Island’s answer to his cross petition.
With the issues thus made up, the Rock Island and Wendel each filed motions for judgment on the pleadings. These motions were both sustained. Appeal No. 37,975 is Wendel’s appeal from the trial court’s order sustaining the Rock Island’s motion for judgment on the pleadings. Appeal No. 37,992 is Bickett’s appeal from the order sustaining Wendel’s motion for judgment on the pleadings.
The motions for judgment did not so state but the grounds upon which the parties relied in filing their motions for judgment and upon which the trial court sustained them were the effect to be given the two releases, reference to which has already been made in this opinion.
We shall consider first Wendel’s appeal. It will be remembered that under the allegations of Wendel’s cross petition Bickett was in charge of the handcar, and it was being manually operated by Col vin for the Rock Island and that Colvin “negligently caused, suffered, permitted and allowed” the handcar to strike the Wendel automobile. Again the cross petition alleged that the negligence of Bickett and Colvin was the negligence of the Rock Island and that Wendel was injured by the “joint negligence of Colvin, Del W. Bickett and the Chicago, Rock Island and Pacific Railroad Company.” Again it states that the proximate cause of the collision was the negligence and the conduct of James E. Colvin, Del W. Bickett and the Chicago, Rock Island and Pacific Railroad Company. Under these allegations Colvin and the Rock Island were clearly joint tort-feasors. In other words, the Rock Island could be proven negligent only by proving Bickett or Colvin to have been negligent.
In Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881, the plaintiff sued for the conversion of hay. From his petition and reply it appeared that he already had recovered for some hay from one whom he now charged colluded with the present defendant to deprive him of hay. We denied recovery and said:
“The tortious taking of the sixty tons of hay was the joint action of both Brandner and the defendant. It being a joint wrong, either or both of the parties were hable to the full extent of the injury, as the law holds any one of such joint trespassers responsible for the misconduct of all.”
So here the negligent injury was the result of the joint negligence of Bickett, Colvin and the Rock Island. Had Wendel seen fit to file a separate action against the Rock Island without naming either Bickett or Colvin as parties, it would have been incumbent on him to allege and prove negligent acts of Bickett or Colvin or some other employee of the Rock Island. Furthermore had he seen fit to sue Colvin or Bickett without naming the Rock Island as a party a judgment or a settlement made in that action would have ended the matter. Wendel could not have thereafter sued the Rock Island.
In Skaer v. Davidson, 123 Kan. 420, 256 Pac. 155, we said:
“The release executed by the plaintiff for a good and valuable consideration became a part of the judicial proceedings in the first case. Therein the plaintiff took satisfaction and dismissed his case with prejudice. No reservation was made for other or subsequent action against the joint tort-feasors of defendants in that case. The plaintiff having litigated his claim against two of the tort-feasors to a final determination is not in position to again litigate the same claim against other joint tort-feasors.”
See, also, Rasnic v. City of Wichita, 126 Kan. 98, 267 Pac. 21; also Paris v. Crittenden, 142 Kan. 296, 46 P. 2d 633.
Wendel in his argument here seeks to avoid the effect of the foregoing authorities by arguing that the release in question was given his insurance carrier, not to him, and that the $750 was paid by the insurance carrier, not by him. The trouble with that argument is — first, the allegation in the Rock Island’s answer with reference to the release. The answer alleged that Wendel and Colvin “entered into a certain release in full of all claims.” There was no mention of an insurance carrier. This allegation was not denied by Wendel. Under such circumstances it must be taken as true. See G..S. 1935, 60-748, where the statute provides:
“. . . Every material allegation of new matter in the answer not controverted by the reply, shall for the purposes of the action be taken as true;
It is true Wendel could not deny the release. However, the allegation in the answer was that the release had been entered into by Wendel and Colvin. Had Wendel intended to maintain that the release had been entered into by his insurance carrier without his knowledge, then he should have so pleaded in his reply. Instead of doing so, however, he filed no reply at all, thus leaving the outright allegation of the Rock Island’s answer uncontroverted.
Furthermore, the release speaks for itself. It reads in part, as follows:
“RELEASE
“In Full of All Claims
“Fob and in Consideration of the payment to me/us at this time of the sum of Seven Hundred Fifty Dollars ($750.00), the receipt of which is hereby acknowledged, I/we, being of lawful age, do hereby release, acquit and forever discharge Paul E. Wendel and his Insurers of and from any and all actions, causes of action, claims, demands, damages, . . . resulting or to result from accident that occurred on or about the 6th day of May, 1946, at or near Elmont, Kansas, in collision between motor car and automobile.
“It is further understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of Paul E. Wendel and his insurers by whom liability is expressly denied.
“This release contains the Entire Agreement between the parties hereto, and the terms of this release are contractual and not a mere recital.”
Unexplained by any pleading and when read in connection with ' the allegation in the pleading, the conclusion is unescapable that the payment to Colvin, on which the release was based, was the payment of Wendel.
Wendel argues vigorously that he executed nothing and released nobody. The uncontradicted answer of the Rock Island, however, alleges that “Wendel and Colvin entered into a release in full of all claims.”
We hold that the trial court ruled correctly in sustaining the motion of the Rock Island for judgment on the pleadings.
We go now to Bickett’s appeal. Wendel alleged in his answer to Bickett’s petition that Bickett subsequent to the collision executed a general release releasing all persons who might be liable to him. Mrs. Bickett substituted for her husband, who had died, and filed a reply by way of a general denial. It was not verified, however. The release bears at its top the words “The Chicago, Rock Island and Pacific Railway Company.” Then underneath in larger letters the words “Release of all claims.” It then recites the payment of $1,000 and that Bickett releases the Rock Island “and all other per sons and corporations from liability to Bickett.” It is signed by Bickett. Its execution was clearly a matter between the railroad and its employee. It is well settled that a settlement made by an employer wih his injured employee does not release a third party who has negligently injured the employee. (See Railway Co. v. McWherter, 59 Kan. 345, 53 Pac. 135; Turner v. Robbins et al., Appellants, 276 Pa. 319, 120 A. 274; and Kentucky & Indiana Bridge Co. v. Hall, 125 Ind. 220, 25 N. E. 219.)
To answer the argument of Wendel, we need only ask ourselves whether Bickett would be compelled to establish a case against Wendel in order to establish a case against the Rock Island. The answer is in the negative. Clearly the payment by the Rock Island to Bickett was an altogether different matter from any liability of Wendel to Bickett. Wendel relies on the general language in the release — “I hereby release ... all persons, firms and corporations . . . .” We hold, however, that the quoted language refers to parties who have some connection with the railroad.
We have concluded that the trial court did not rule correctly when it sustained Wendel’s motion for judgment on the pleadings.
The judgment in appeal No. 37,975 is affirmed. The judgment in appeal No. 37,992 is reversed. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises out of a proceeding to establish a claim against the estate of a decedent.
Although we are furnished with an abstract showing all that has transpired in the probate court in the administration of the estate of Arthur Paul Hilliard, deceased, disposition of the present appeal does not require any recital thereof further than that the widow, Jennie M. Hilliard, filed her petition in the probate court for specific performance of a contract allegedly made for her benefit by her son Roy Schultheiss and her husband Arthur Paul Hilliard, under the terms of which Hilliard agreed that if Schultheiss would remain on the farm, perform work and labor thereon, add to and improve the then three room house, Hilliard would make a will leaving certain property to Jennie M. Hilliard. Performance by Schultheiss is pleaded at length, as well as the failure of Hilliard to perform. To this petition Evelyn Nielsen, a daughter of Hilliard by a previous marriage, filed objections and also a motion that the petition be dismissed. As the result of a hearing in the probate court judgment was rendered in favor of Jennie M. Hilliard and Evelyn Nielsen appealed to the district court.
In the district court Evelyn Nielsen filed a motion for an order dismissing the petition of Jennie M. Hilliard for nine asserted reasons which we summarize: 1. That Roy Schultheiss, a stepson of Arthur Paul Hilliard, and whose services constituted the consideration of the contract, was a member of the family and not entitled to compensation. 2. That petitioner is not the real party in interest. 3. That petitioner is not a proper party plaintiff. 4. That there is a petition filed by Roy Schultheiss setting out the same state of facts. 5. That the action is barred by the statute of limitations. 6. That the alleged action is in violation of the statute of frauds. 7. That the value of the services could have been ascertained and Roy Schultheiss could have filed a claim in the probate court. 8. That the petition does not state facts sufficient to constitute a cause of action. 9. That, by reason of certain facts stated at length but none of which appear in the petition, petitioner is estopped.
The district court heard the foregoing motion and denied it and Evelyn Hilliard perfected an appeal to this court.
Although the question of our jurisdiction is not raised by the appellee, it is our duty to determine whether the attempted appeal properly invokes the jurisdiction of this court. (Kowing v. Douglas County Kaw Drainage Dist., 167 Kan. 387, 207 P. 2d 457, and Pulliam v. Pulliam, 163 Kan. 497, 183 P. 2d 220, and cases cited.)
Under G. S. 1949, 60-3302, provision is made for appeal to this court under four classifications, only two of which are pertinent here from a final order or on a ruling on a demurrer. Under 60-3303 a final order is defined as one which affects a substantial right in an action and in effect determines the action and prevents a judgment. We shall not attempt any full review of our many authorities but in Pulliam v. Pulliam, supra, it was held that the overruling of a motion to dismiss a petition in a divorce action on the ground it was not properly verified is not an appealable order, although as is there pointed out an order striking such a petition would have been a final order and appealable. In Kansas State Highway Comm. v. Moore, 166 Kan. 408, 201 P. 2d 652, it was held that an order of the district court denying defendant’s motion to dismiss a petition was not a final order and was not appealable. See also cases cited in the cases previously referred to, as well as Singleton v. State Highway Comm., 166 Kan. 406, 201 P. 2d 650; Maichel v. Coleman, 167 Kan. 93, 204 P. 2d 731; and In re Estate of West, 167 Kan. 94, 204 P. 2d 729, where analogous situations were considered and where it was held an appeal did not lie.
In her brief appellant states that her motion to dismiss is in the nature of a demurrer to the petition and is an appealable order (see G. S. 1949, 60-3302, Second). It is to be observed however that if the pleading is what it states it is, it is a motion to dismiss and not a demurrer. With the exception of the eighth ground stated, none of the grounds urged may be determined from the face of the petition, and in fact the argument as to all grounds is based on pleadings filed in the probate court, but as to which the petition under attack is silent. If the eighth ground asserted may be isolated from the other grounds and independently considered, that has not been done by the appellant, whose argument is, in substance, that considering all that has transpired in the probate court, shown by the abstract of proceedings in the probate court, but no part of the record in the district court, and not appearing on the face of the petition, it appears that petitioner is not equitably entitled to any relief; that she is estopped; and that she is guilty of laches. These matters may very properly be pleaded in defense, but they are not raised by any demurrer where the facts relied on are not disclosed in the petition attacked. There is no complaint that the petition in and of itself does not state a cause of action.
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The opinion of the court was delivered by
Thiele, J.:
This was an action challenging validity of the organization of a joint rural high-school district, and seeking to oust it from exercising any corporate powers.
The plaintiff appeals from a ruling and decision quashing service of process issued against the board of county commissioners, the county clerk and the county treasurer of Linn county, and from an adverse ruling on a demurrer to the petition filed by LaCygne Rural High-school District No. 6, Joint, and by the three members of its board of education.
Insofar as the ruling on the motion to quash is concerned, it is noted that in its original brief, appellant devoted considerable space to the question. In their brief the appellees point out that the ruling was made on March 14, 1949, and that notice of appeal was not filed until June 25, 1949, and that by reason of the belated appeal the question is not properly before this court for consideration. In its reply brief the appellant states that “appellees appear to be correct.” The ruling quashing process was a final order (Newberry v. A. K. & C. Rly. Co., 52 Kan. 613, 35 Pac. 210) from which an appeal must be perfected within two months (G. S. 1947 Supp. 60-3309). The appeal was not perfected in time and the ruling is not before us for consideration.
Preliminary to discussing the demurrer to the petition, we note that the original petition named as defendants the board of county commissioners, the county clerk and the county treasurer of Miami county, the like officers of Linn county, LaCygne High-school District No. 6, and Danner, Modesitt and Teagarden, pretended members of the board of education of pretended LaCygne Rural High-school District No. 6. If the Miami county officials filed any pleadings, they are not included in the abstracts. Other defendants filed their motion to make the petition more definite and certain and to strike certain allegations, which motion was sustained in part and denied in part and thereafter an amended petition was filed. The amended petition is long and to a degree repetitious. We summarize its allegations.
After setting forth the status of the parties, it is alleged that in the year 1946 and the early part of 1947 an attempt was made to organize a rural high-school district in Linn county and Miami county, consisting of certain described territory, which attempted organization was designated as LaCygne Rural. High-school District No. 6, Joint, and was void for the following reasons:
That certain persons residing in the two counties circulated petitions and filed the same with the board of county commissioners of Linn county requesting the board to call a special election to vote on the establishment of a rural high school, the petitions contained the names of persons purported to be legal electors residing in the territory; and
. . that no one of such petitions were signed by two-fifths of the legal electors residing in the city of LaCygne and no one of such petitions were signed by two-fifths of the legal electors residing in the territory of said proposed rural high school district outside of the city of LaCygne, but some of said petitions contained as few as seven, and other petitions contained as many as 166 names, and on said petitions appeared many names of persons who were not legal electors residing in the proposed territory to be incorporated in said Rural High School District, and said petitions also contained the names of many women who signed their names by writing either the initials or the first names of their husbands; that it was and is impossible to determine from said petitions the number of electors which the persons circulating and filing said petitions claimed resided in the proposed territory; that plaintiff is unable to state the date these petitions were filed, or whether all of them were filed the same day or upon different days.
“That some of the names on the petitions were not the signatures of the electors but only their names written by someone else and there was no evidence presented to the Board of County' Commissioners of Linn or Miami County when the petitions were presented to them to establish the fact that every one of the names appearing on said petitions were written by the hand of said person, and no attempt was made to ascertain said fact, and said Commissioners did not then and do not now know if the signatures were genuine.
“That some of the petitions did not accurately recite the boundaries of said proposed district and the approval as required by law was not recited therein and was not in fact secured before the petitions were circulated, signed and filed.
“That the same name appeared on more than one petition and the pretended enumerations were in some cases made from the petitions which were signed prior to the pretended enumerations. That if the names of purported legal electors whose names are signed to said petitions who were not in fact legal electors residing in said proposed territory are eliminated, and the names of the women who signed the said petitions by writing the initials or the first names of their husbands are eliminated and the names of persons whose names appear on said petitions which were written on said petitions by some person other than the person whose name appears on said petitions are eliminated, and the duplication of the same name are eliminated from said petitions, said petitions do not contain the names of two-fifths of the legal electors residing in said proposed school district.”
It was further alleged there was no enumeration of the legal electors by any legal elector and by him certified under oath to the board of county commissioners of Linn county, wherein the greatest amount of the territory was located, and that sometime after the petitions were filed a number of sheets of paper purporting to be enumerations were filed; that the purported enumerations consisted of separate sheets no one of which contained the names of the total number of legal electors, and in said sheets it was stated under oath the total number of legal electors was 4, in other sheets 7 and in another as many as 166, but that on the sheets appeared more than 175 names, and that no person certified there were more than 175 legal electors, and no legal elector certified under oath as to the total number of legal electors as required by law and that it was impossible to determine from the petitions or enumerations the correct number of legal electors and that the board had no legal enumeration prepared by any one elector by which they could ascertain that two-fifths of the electors had petitioned for the school; that in fact there were 33 electors who did not appear in any of the enumerations, and some who were listed as living in town (LaCygne) actually voted in the country. It may here be noted there is no allegation that the petitions were not signed by two-fifths of the legal electors residing in the proposed district, nor is there any allegation as to the number of legal electors in the proposed district.
It was further alleged the board of county commissioners caused to be published in two named newspapers a publication notice attempting to describe the territory, the description varying from that contained in some of the petitions and providing for the use of two ballots, one “For said Rural High School,” the other “Against said Rural High School”; that the first publication was December 13, 1946, and fixed January 3, 1947, for holding the election; that the first proof of publication in the LaCygne Journal stated a publication for only one week but a second proof showing two weeks publication omitted to show the year other than 194 — , and that it appeared from the proof of publication that the same was not completed at least 21 days prior to the election; that an election was held on January 3, 1947, and that printed or typewritten notices were not posted upon the door of each schoolhouse in the proposed district at least 21 days prior to the date of election in that no notice was posted on the schoolhouse in Brooklyn district, and plaintiff does not know as to other schoolhouses; that at the election held January 3,1947, a majority of persons voting voted in favor of the establishment of the district, and that many persons were permitted to vote under names that were not their true names and under names that were not bona fide legal electors residing within the district. There is no allegation that the right of any person to vote was challenged when he offered to vote or at any other time.
Other allegations are that all petitions, enumerations, orders, returns of election, names of electors, publication notices and other papers were on file in Linn county and were made part of the petition by reference; also that members of the board of education had been elected, had levied an assessment and collected taxes and proposed to levy taxes in succeeding years for the support of the school, and to collect and disburse taxes already collected; that certain taxpayers had paid the tax under protest; that the school district and its officers had no authority to act; that the boundaries of the district were so vague, indefinite and uncertain as to make it impossible to ascertain the exact territory within the district; that the proposal to form and organize the district was not approved by the requisite officials of Miami county nor by the state superintendent of public instruction prior to the circulating, signing and presenting of the petitions, as required by law. At no place in the petition is there any allegation that any official acted fraudulently or corruptly.
The prayer was that the organization of the district be declared illegal and void, and that the district be ousted and barred from exercising corporate power and that the members of the board of education be ousted, and that plaintiff have such other relief as was meet and proper.
The notice of election for the proposed district attached to the petition recites that:
“In compliance with a petition signed by at least two-fifths of the legal electors residing in the territory of the proposed rural high school district, as determined by an enumeration taken for that purpose, the boundaries of which were approved by the county superintendent of public instruction and the board of county commissioners of Linn and Miami Counties, Kansas, it is hereby ordered that
AN ELECTION
be held . . . (setting a date and describing the boundaries of the proposed district)
“The vote shall be by ballot. On the ballots in favor of the establishment of said rural high school district shall be written the words, ‘Eor said Rural High School District’ and on the ballots against the establishment of said rural high school district shall be written, ‘Against said Rural High School District.’ ”
To the amended petition the school district and the members of the board of education demurred on the grounds: (1) That on its face it showed the court had no jurisdiction of the persons of the defendants or of the subject matter; (2) that plaintiff had no legal capacity to sue; (3) that several causes of action were improperly joined; and (4) that facts sufficient to constitute a cause of action were not stated. This demurrer was sustained without specification of any particular ground.
From that ruling the plaintiff gave timely notice of appeal. In what is hereafter said the term appellees refers to the school district and its board of education.
By reason of the generality of the trial court’s ruling on the demurrer we shall devote some attention to each ground.
The first ground is that the trial court had no jurisdiction of the persons of the demurring defendants or of the subject matter of the action. Appellees’ contention is that suits against public officers for official acts must be brought in the county where those acts are performed and our attention is directed to G. S. 1935, 60-503, Second, and to decisions where the question of venue was involved, such as Clay v. Hoysradt, 8 Kan. 74; Trader v. Southwestern Bell Telephone Co., 145 Kan. 690, 66 P. 2d 414; Shawnee County Comm’rs v. Wright, 147 Kan. 542, 78 P. 2d 44; Continental Pipe Line Co. v. Cartwright, 154 Kan. 430, 118 P. 2d 1052; Evans v. Marsh, 158 Kan. 43, 145 P. 2d 140; and others cited in the above. The general rule contended for may be conceded, but by reason of the provisions of the statute under which the school district was organized, its application does not follow. While it is true of joint school districts generally that the district is under the jurisdiction of the county superintendent of the county where the main building is located (G. S. 1935, 72-305) and that the director controls litigation for and against the district (G. S. 1947 Supp. 72-1004) and that generally the board of education of a rural high school has the same power as the board of a common school (G. S. 1935, 72-2507), it is also provided that a joint rural high-school district is under the supervision of that one of the counties in which is the greatest territory (G. S. 1935, 72-3508). Further, it is specifically provided that the rural high school board shall meet at the “high-school building or at such other place as they may agree upon” (G. S. 1935, 72-3506). Under decisions which need not be cited, they may not transact school business outside the district. That they can perform any place within the district seems clear, and that includes a portion of lands in Miami county, and it need not be debated that every act performed by the board has effect in that part of Miami county included within the boundaries of the district. But we need not pursue this particular matter further. A quite analogous situation was considered in State, ex rel., v. Miley, 120 Kan. 321, 243 Pac. 262, where it was held:
“In an action to enjoin the state superintendent of public instruction and the county superintendents and the boards of county commissioners of two or more counties from proceeding illegally in the formation of a rural high-school district, the state superintendent of public instruction may be sued with the other defendants in any one of the counties in which some of the defendants may be served and in which the proposed rural high-school district may be situated.” (Syl. IT 4.)
In view of that decision we are of opinion the trial court did not sustain the demurrer on any claim of lack of jurisdiction.
In our opinion, no space need be devoted to that ground of the demurrer that the plaintiff had no capacity to sue.
Insofar as improper misjoinder of several causes of action is concerned, it is true there are allegations that taxes were illegally levied and that taxpayers had paid the same under protest, but none of them are parties to this action. In our opinion the allegations may be treated as explanatory of the claimed abuse of corporate power rather than as stating a cause of action for the protesting taxpayers.
The principal question is raised by the fourth ground of the demurrer, that is that facts sufficient to constitute a cause of action are not stated.
Before considering the demurrer to the petition we take note of the statutes under which a rural high-school district may be created, and some of our decisions bearing on what may be considered in an action in quo warranto brought by the state to determine its validity. The review made is in the light of the case before us and is not intended to be exhaustive either of the statutes or of the decisions.
Legal electors residing in territory containing not less than sixteen square miles have authority to form a rural high-school district whose boundaries have been approved by the county superintendent of public instruction and by the board of county commissioners of each county in which the proposed district shall be situated (G. S. 1947 Supp. 72-3501). Whenever a petition signed by two-fifths of the legal electors residing in the proposed district, to be determined by an enumeration taken for the purpose of any legal elector and by him certified under oath to the board of county commissioners of the county in which lies the greatest portion of territory of the district, reciting the boundaries of the proposed district and the approvals above noted, shall be presented to the board of county commissioners requesting the board to call a special election to vote on establishing the district, it shall be the duty of the board forth-' with to call an election in the proposed district to vote on the establishment thereof. The election shall be governed by the provisions of the general election law when not contrary to the act. Notice of the election shall be given at least twenty-one days prior to the date of the election by posting printed or typewritten notices on the door of each schoolhouse in the proposed district and by publishing the same twice in some newspaper published in each county in which the proposed district lies (G. S. 1947 Supp. 72-3502). In this case the proposed district contains an incorporated city having a population in excess of 500, and it is required that the vote therein shall be separate from the territory without and that a majority is required of those voting within the city and a majority of those voting without (G. S. 1947 Supp. 72-3504).
In State, ex rel., v. Holcomb, 95 Kan. 660, 149 Pac. 684, in connection with the act for incorporation of cities of the third class by boards of county commissioners, it was held that the authority conferred is jurisdiction which attaches when a petition fair on its face and duly published is filed.
In State, ex rel., v. Dowling et al., 117 Kan. 493, 232 Pac. 615, the action was in quo warranto to determine validity of a joint rural high-school district under a statute, which as amended is that now under consideration. In that action the district court had granted relief to the plaintiff on a petition charging that the boundaries of the district were not clearly defined; that no accurate enumeration was taken and that the requisite sanction of the county superintendent of Decatur and Norton counties and of the board of county commissioners of Decatur county had not been given. On appeal this court reversed the trial court. For present purposes we are interested only in the following:
“Since there was neither charge of fraud or similar misconduct, the ascertainment of the number of electors in the district and of the sufficiency of the petition for the calling of the election were exclusively the official concern of the county board. This court has repeatedly held that where the determination of the existence of prerequisite facts to authorize official action is vested in a local tribunal, such as a county board or a mayor and city council, its determination is conclusive and is not subject to review except in cases of fraud or similar misconduct or sufficient gravity to vitiate it. (The State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873; The State, ex rel., v. City of Harper, 94 Kan. 478, 146 Pac. 1169; The State, ex rel., v. Holcomb, 95 Kan. 660, 149 Pac. 684; The State, ex rel., v. City of Victoria, 97 Kan. 638, 641, 156 Pac. 705; The State, ex rel., v. School District, 113 Kan. 441, 215 Pac. 453. See, also, Town of Olsburg v. Pottawatomie County, 113 Kan. 501, 215 Pac. 451.)” (l. c. 496)
and in the court’s holding:
“Where the statute confers authority on a board of county commissioners to call an election on the proposition to establish a joint rural high-school district, upon the presentation of a petition signed by two-fifths of the electors of the territory concerned, and upon an enumeration of the electors of such territory taken by a resident elector and certified to the county board by his affidavit, the county board has jurisdiction to determine the sufficiency of the petition and of the enumeration; and where there is neither allegation nor proof of fraud or similar misconduct affecting the official action of the county board its determination that the petition and enumeration were sufficient is conclusive and not subject to judicial review — following The State, ex rel., v. Holcomb, 95 Kan. 660, 149 Pac. 688.” (Syl. ¶ 2.)
The rule stated has been recognized in subsequent decisions. See e. g., State v. City of Hutchinson; 137 Kan. 231, 19 P. 2d 714; Bukaty v. City of Kansas City, 137 Kan. 520, 21 P. 2d 399; State, ex rel., v. City of Walnut, 166 Kan. 296, 201 P. 2d 635; and cases cited therein.
We also take note that appellees had filed a motion to make more definite and certain and to strike, containing twenty-eight numbered grounds, directed against the original petition. This motion was sustained in eight particulars and denied in all others, and thereafter the appellant filed his amended petition to comply with the court’s ruling. Included in the particulars successfully resisted by the appellant was the appellees’ effort to have copies of the petitions for organization attached, to have appellant state what signers were not legal electors, what names were written by some other person and without authority, which petition did not correctly define the proposed boundaries, what names appeared on more than one petition, to set out copies of the enumerations and to state the number of legal electors the plaintiff claimed resided in the district within and without the city of La Cygne, to set forth the names of the thirty-three electors allegedly omitted from the enumerations, to state which enumerations were not properly certified, to attach copies of the orders of the board of county commissioners of Linn county and the returns of the elections and other papers made part of the petition by reference. The motion to strike was directed at many allegations and need not be detailed here.
Appellees direct attention to Kinderknecht v. Hensley, 160 Kan. 637, 164 P. 2d 105, where it was said that when timely motions leveled against a petition are resisted by a plaintiff and are overruled, and thereafter the -legal sufficiency of the petition is tested by a demurrer, the allegations are no longer entitled to a liberal interpretation but must be strictly construed with the view the plaintiff has pleaded all that he can in his favor, and they argue the petition, in respect to the proper but overruled portions of their motion should be strictly construed. Appellant contends that as no motion was directed to its amended petition the rule is not to be applied. We cannot agree that appellees must file a second motion directed against allegations of the second petition which are the same as those of the first petition which they had unsuccessfully attacked. It is not contemplated under our practice that there be repeated rulings on a matter which has been determined by the first ruling. We shall not pursue each complaint made, but shall consider the allegations of the amended petition in the light of what has been said.
In view of the rule above stated that where the determination of the existence of prerequisite facts to authorize is vested in a local tribunal, here the board of county commissioners of Linn county, and that its determination of those facts is conclusive and not subject to review except in cases of fraud or similar conduct of sufficient gravity to vitiate it, and in view of the fact that there is no specific allegation of fraud or similar conduct, we examine the amended petition only to determine whether, under well pleaded allegations, there was conduct of sufficient gravity to vitiate the proceedings establishing the school district.
There is no doubt but that a petition containing requisite recitals required by the statute under which action is to be taken must be filed (Greeley County v. Davis, 99 Kan. 1, 160 Pac. 581), nor that when a petition fair on its face is presented, jurisdiction to act attaches (State, ex rel., v. Holcomb, supra). There is no direct or other allegation of the amended petition that the petition or petitions for the creation of the school district filed with the board of county commissioners of Linn county did not contain the recitals set forth in the statute (G. S. 1947 Supp. 72-3502), but rather the allegations of the amended petition go to the proposition those recitals were not true, primarily a question for determination by the board of county commissioners.
Appellant’s complaint that more than one petition was filed is not significant if the petitioners signing the separate petitions were legal electors and the petitions were otherwise adequate (State v. City of Hutchinson, 137 Kan. 231, 233, 19 P. 2d 714). Its complaint that women signed the petitions by using the initials or first names of their husbands instead of their own Christian names and that the signatures were not to be counted is contended to be supported by State, ex rel., v. Dunn, 118 Kan. 184, 235 Pac. 132, where the real question was whether the signers signed their names as they appeared on the registration books of the city of Emporia. In the instant case registration laws have no application. While signatures of the type complained of were not ordinarily in proper form, the question under the applicable statute was whether a requisite number of legal electors had signed the petitions. In the absence of any allegation to the contrary, we assume the board of county commissioners determined that qualified signers constituted two-fifths of the legal electors of the proposed district. All efforts of the appellees to learn what names appeared on more than one petition, what names on the petitions were written thereon by someone else or the names of signers who it was alleged were not legal electors, were successfully resisted by the appellant. Under the allegations we cannot assume that any given number of signatures were duplicates, nor that any given number of women signed other than their Christian names, nor that any given number had their names signed by another person, nor that any given number who were not legal electors signed the petition. The only allegation is an argumentative one that if all of those above mentioned be excluded, the petitions did not contain the signatures of two-fifths of the legal electors. There is no forthright allegation that two- fifths of the legal electors did not sign. Appellant also alleged that the petitions did not show approval of the boundaries of the district by the requisite officers before the petitions were filed. It is said this is in utter disregard of the statute. In State, ex rel., v. School District, 113 Kan. 441, 215 Pac. 453, a case arising under a statute of which the one presently involved is an amendment, it was held:
“Under the statute providing that a petition for the calling of an election to vote on a proposal to organize a rural high-school district shall recite that the boundaries have been approved by the county superintendent and commissioners, the omission of such recital and the fact that the boundaries were not approved by such officers until after the petition was signed (but were so approved before it was acted upon) are mere irregularities, insufficient to require a court to set aside the attempted organization of the district in an action brought in the name of the state.” (Syl. H 2.)
Appellant’s complaints that the enumeration was not sufficient seem directed to the fact that there was more than a single enumeration rather than to the fact that all taken together were insufficient. The argument seems to be that one legal elector must have made the entire enumeration and certified it under oath to the county board. While the correctness of that contention may be doubted, the allegations are only that more than one enumeration was filed; that the enumerations do not agree, that one showed 166 legal electors and that there were 33 legal electors whose names did not appear on any one of the enumerations. Our attention is directed to State, ex rel., v. Van Meter, 131 Kan. 140, 289 Pac. 399, a case arising under the statute now before us, but wherein the effort was to disorganize a district. Under such" circumstances the enumeration was relatively much more vital for the reason that more than fifty percent of the legal electors, as shown by the enumeration, must vote in favor of disorganization before that result may be accomplished (G. S. 1947 Supp. 72-3502), whereas organization is accomplished by the majority vote of those voting (G. S. 1947 Supp. 72-3504). In view of the fact there was no allegation as to the number of legal electors in the proposed district, nor any direct allegations the petitions for organization were not signed by two-fifths of the the legal electors, we feel impelled to hold that any deficiency there may have been in the enumeration must be treated as an irregularity, and that the consideration of the several enumerations and the conclusion of the board of county commissioners that two-fifths of the legal electors signed the petitions for organization of the district cannot be con strued as fraud or similar conduct of sufficient gravity that a court should interfere on account thereof.
Appellant’s complaints that there were variances in the description of the territory to be included in the proposed district turn on its .allegation “that some of the petitions did not accurately recite the boundaries.” It successfully resisted a motion to make definite and certain. Inferentially some of the petitions did accurately recite the boundaries. There being no allegation to the contrary we must assume that some of the petitions presented to the board of county commissioners, signed by the requisite number of legal electors, contained an accurate description of the boundaries, which are the same in the original petition, the amended petition and in the published notices of election. A comparison of those boundaries with a map included in appellant’s reply brief shows the territory properly defined. In the latter brief are statements of claimed errors in some of the petitions. The claimed variance is that a call to the “SE comer of Sec. 19” is erroneous and that it should have been the southwest corner. If that were all the error would perhaps be important, but it is not all; the full call is from a point not in dispute, “thence due west four and a half miles to the SE Corner of Sec. 19” and later calls show clearly that the distance and not the designation actually meant the “SW corner of Sec. 19,” as it appeared in other petitions, and in the published notices of election signed by the board of county commissioners. The rule that in the description of a boundary monuments prevail over courses and distances will not be followed where it would result in destroying the continuity of a line which can be preserved by rejecting an obviously erroneous call. See State, ex rel., v. School District, 113 Kan. 441, Syl. ¶ 1, 215 Pac. 453. In view of the fact the election was held, the district was established, and as such has been functioning, we refuse now to hold that the error in some of the petitions was anything more than an irregularity. And certainly it cannot be said that the board’s conclusion that the petitions accurately described the real estate was actuated by fraud or constituted conduct of sufficient gravity that it was the equivalent of fraud.
Appellant’s contention that the election was not legally held will be noticed briefly. A contention that the description of boundaries in the notices and election varied from the descriptions in the petitions presented to the board of county commissioners is answered by what has been said heretofore. Its contention that twenty-one days notice was not given is not good. The first publication was December 13, and counting it as the first day of notice there were nineteen days in December and two days in January or twenty-one days notice of the election on January 3. See State, ex rel., v. Wallace, 112 Kan. 264, 210 Pac. 348, and City of Wichita v. Robb, 163 Kan. 121, 179 P. 2d 937. See, also, State, ex rel., v. Allen County Comm’rs, 143 Kan. 898, 57 P. 2d 450, where failure to give notice was held not to warrant judgment for plaintiff. The claimed defect in the proof of publication in the LaCygne Joúrnal needs no comment. There is no allegation that the notice was not actually published for two weeks, the first publication being made on December 13, 1946. The omission in filling a blank, heretofore pointed out, was an irregularity at the most.
The state further contends that the notice of election provided for the use of two ballots and that thus the right of the secrecy of the ballot was destroyed, and our attention is directed to State, ex rel., v. Metzger, 26 Kan. 395; Taylor v. Bleakley, 55 Kan. 1, 39 Pac. 1045, 49 Am. St. Rep. 233, 28 L. R. A. 683; and Kansas Utilities Co. v. City of Paola, 148 Kan. 267, 80 P. 2d 1084; which need not be reviewed as they are not determinative here. The argument is predicated solely on the recitals of the part of the election notice quoted earlier in this opinion. It will be noticed that the election notice does not pretend to set forth the form of the ballot. As heretofore stated, the statute makes the general election law applicable when not contrary to the act. There is no allegation in the amended petition that more than one ballot was given to any elector, nor that the form of the ballot did not comply with the provisions of G. S. 1935, 25-605, and we cannot assume that it did not.
It is also contended the election was void because no notice of election was posted on the door of the schoolhouse in Brooklyn district. The sole argument made is that if notice was not posted on one schoolhouse how many schoolhouses could be missed before failure to post became material. Our attention is directed to Schur v. School District, 112 Kan. 421, 210 Pac. 1105, and cases cited therein. Only State, ex rel., v. Echols, 41 Kan. 1, 20 Pac. 523, is closely in point, and it was there held:
“The time when such an election shall be held is not designated in the statute, but is to be fixed by the county commissioners, and public notice of the time and purpose of the election is required to be given by publication in a newspaper of the county, and by posting copies of the notice at each of the polling-places in the county at least ten days before the election. Held, That the giving of notice substantially in the manner directed by law is a prerequisite of the validity of such an election, and where there is a failure to post notices at any of the polling-places, and a large number of the electors of the county fail to vote upon the proposition, the election will be void.” -<Syl. 112.)
In the amended petition the allegation was that no notice was posted on the schoolhouse in Brooklyn district “and plaintiff does not know the names of the other schoolhouses on the doors of which notices were posted or the date or dates said notices were posted if they were posted on such other schoolhouses.” The only inference we can draw is that there were at least two other schoolhouses. There was no allegation the newspaper publications of the election notice were not made, nor any allegation that any number of electors, large or small, failed to vote, nor that any legal elector of the district failed to vote because he had no notice of the election. We are impelled under the circumstances to hold that the mere fact a notice of election was not posted on the door of one of the three or more schoolhouses in the boundaries of the proposed school district did not have the effect of making the subsequently held election void.
And finally in connection with the election we note the allegation that many persons were permitted to vote at the election under names that were not their true names and under names that were not bona fide electors within the district. The appellees’ motion the allegation be made more definite and certain was successfully resisted by the appellant. There was no allegation that the vote of any such person was challenged in any manner, nor that the vote of any such allegedly disqualified voter was either in favor of or against the organization of the district. Under the circumstances we cannot conclude the election was a nullity.
We need not comment at any length on the appellees’ contention, conceded by the appellant, that in an action in quo warranto the right to the relief sought rests largely in the sound discretion of the court, and is- not a matter of right. Those interested will find phases of the matter discussed at length in State, ex rel., v. Wyandotte County, 117 Kan. 151, 230 Pac. 531; State, ex rel., v. Allen County Comm’rs, supra; State, ex rel., v. Grenola Rural High School Dist., 157 Kan. 614, 142 P. 2d 695; and others mentioned in those just cited. The essence of appellant’s argument that the relief sought by it should not be denied on discretionary grounds, is that all of the facts and circumstances pleaded by it show a studied effort on the part of the appellees to disregard many provisions of the statutes for the organization of the district. As has been demonstrated above, that conclusion cannot be sustained.
The ruling of the trial court on the demurrer to the amended petition is affirmed.
Wertz, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This appeal is from an order refusing to direct the clerk of the court to disburse money impounded in conformance with a judgment this court directed to be entered. The moving, parties have appealed.
The facts require a reference to our opinion in In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879. At the outset, it should be stated that appellants here, Waldorf and Jacobs, are the son and daughter of the wife of Thompson, who predeceased him. They were her children by a former husband. The appellees are the executor of his estate and his heirs at law. We go now to a recital of the facts as they are set out in our former opinion.
Mrs. Thompson died April 2, 1946. On April 4 Thompson executed a deed to a residence property in Wichita to Samuel Elvin Waldorf and Cleora B. Jacobs, son and daughter of Mrs. Thompson by a former marraige, appellants here. In the deed he reserved a life interest in the property. For the sake of a better understanding it should be stated that the legal record title to this property has been in these two parties at all times ever since and still is in them.
On January 7,1947, Thompson filed an action against these stepchildren to have the above conveyance set aside on the ground of fraud. On January 13, 1947, the parties entered into a written agreement in purported settlement of this action. As to this residence property, it was agreed it was to be sold and the proceeds divided equally between the stepchildren and Thompson. The agreement further provided that upon the fulfillment of the contract the case to set aside the deed, to which reference has been made, was to be dismissed. On February 8, 1947, without the contract having been carried out, Thompson died. Samuel Erastus Waldorf was appointed special administrator to conserve the assets of the estate. On February 26, 1947, he filed an action to compel specific performance of the contract of sale, which had been entered into to settle the action brought by Thompson to set aside, the deed to the stepchildren. On April 1, 1947, Thompson’s will was admitted to probate and Samuel Erastus Waldorf was named-executor and directed to conserve the assets of the estate and especially to carry to a final conclusion the action to enforce the contract to sell the residence property. On April 26, 1947, Samuel Erastus Waldorf, as executor, was substituted as plaintiff in the action over the objection of defendants. The trial of the action proceeded. It was stipulated that no sale of the residence property had, been made and that the original suit to have the conveyance to the stepchildren set aside was still pending. The trial court gave judgment decreeing specific performance. On appeal to us, one of the grounds urged why the contract could not be enforced was that there were essential elements upon which the parties had not agreed. This lack was any agreement as to the price at which the property was to be sold. After disposing of some jurisdictional questions we took up the above argument. In dealing with it we made reference to the opening statement of counsel for defendants, where he said “The property was listed with a real estate agent at an agreed price of Twelve Thousand Dollars.” We held the above statement made the contract sufficiently clear as to be enforceable. We held the trial court was correct in overruling the defendant’s demurrer to plaintiff’s evidence. We held, however, that the judgment required modification. We pointed out the judgment provided it should have the effect as if defendants and each of them had executed proper deeds of conveyance for the property. We pointed out that under the circumstances such a judgment could not be made effective since no one could say who the grantee would be. Finally we said:
“It must be assumed that the defendants will cooperate in good faith, in the sale of the residence property. What action may properly be taken in case they fail to do so may well await the event. Further, the judgment should provide, in harmony with the agreement, as supplemented by the opening statement, that the residence property be sold, if a buyer can be found, at a price not less than $12,000. This is not to say that modification upon which the parties may agree, subject to approval of the court, may not be made.”
We now take up a statement of what happened in the court below that brought on this appeal. On March 7, 1947, while the action was pending the court made an order directing the rent for the property be paid to the clerk of the court and held by that oficial pending the final outcome. On August 23, 1948, the parties stipulated that both parties had made extended efforts to sell the property and
“2. Notwithstanding their efforts, neither the plaintiff nor the defendants have been able to find a purchaser for the said property for any consideration as high as $12,000.00; and there does not appear to be any likelihood that the said property can be sold for the said sum.”
On December 13, 1948, after a hearing this stipulation was approved by the trial court. On May 10, 1949, defendants filed an application for disbursement of funds in the hands of the clerk of the court. In it they recited that the rentals had been impounded; that all issues of law and fact litigated in the action had become moot and nothing else remained for the court to determine and the impounded rentals belonged to the defendants. The prayer was that these rentals be ordered disbursed to the defendants. On May 12,1949, at a hearing on this motion the trial court allowed the oral motion of the heirs at law to be joined as parties plaintiff in the action and denied defendants’ motion to disburse.
Samuel Elvin Waldorf and Cleora B. Jacobs have appealed.
They argue here that the limited nature of the judgment ordered by us and the inability of the parties to comply with this judgment had the effect of rendering unenforceable the contract the action was brought to enforce. If they are correct, then since the title to the property has at all times been in defendants they are entitled to the rent.
The appellees concede the limited nature of the judgment and the inability of the parties to carry out its literal terms. They argue, however, that authorities dealing with partial inability of performance should control and the trial court should proceed to order the property sold for the highest and best price obtainable.
We find it is not necessary to decide the above questions. We now narrate some facts learned by us at the oral argument and from a supplemental brief filed by appellees. It will be remembered the will of Thompson was admitted to probate on April 1, 1947, and Samuel Erastus Waldorf was named executor and on April 26, 1947, he, as executor, was substituted as plaintiff. We learn now that while this action was pending the heirs at law of Thompson appealed from the order admitting the will to probate. On May 13, 1948, the district court set aside the order admitting the will to probate. This judgment was appealed to us but the appeal was dismissed and the judgment has now become final. When the order admitting the will to probate was set aside for lack of capacity the appointment of Samuel Erastus Waldorf fell with it. This had been the condition of the action for nearly a year when the application to disburse was filed. Hence at the hearing of this motion the executor, Samuel Erastus Waldorf, was without authority or right to take any steps whatever in the action. The parties seemed to sense this situation since on May 12, 1949, they made oral application to be permitted to be joined as parties plaintiff, which request was granted. In their supplemental brief they point out a provision of G. S. 1935, 60-410, as follows:
“All persons having an interest in the subject of this action, and in obtaining the relief demanded, may be joined as plaintiffs, . . .”
This is not an action for the recovery of real estate. It was originally brought to require defendants to sell to some party not then known. It was brought by a special administrator named by the probate court and in compliance with an order of the probate court. The statute provides for actions to collect the assets of an estate being carried on by the executor or administrator alone or as co-plaintiffs with the heirs at law. (See G. S. 1947 Supp. 59-1401.) It does not, however, provide for such an action being carried on by the heirs alone. It follows there is no party plaintiff in this action. The judgment refusing to probate the will was entered on May 13, 1948. More than a year has elapsed since that action was taken and no effort has been made to revive and thus bring a proper party into this action. It is too late now. (See G. S. 1935, 60-3215.) It follows that the action to compel the performance of the contract, the subject of the appeal in In re Estate of Thompson, supra, must fail.
Since the record title to the residence is in Samuel Elvin Waldorf and Cleora Jacobs, who made the application to have funds in the hands of the clerk of the court disbursed, the court should have allowed the application.
Appellees argue here that the order refusing to order the impounded money disbursed was not a final order and hence not appealable. On account of the view we have taken of the nature of the motion and the disposition we have made of it, we have concluded the order is appealable.
The judgment of the trial court is reversed with directions to enter judgment in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding in mandamus to compel the auditor of the state of Kansas to register bonds in the principal amount of $1,256,700, issued by the board of education of School District No. 1, city of Great Bend, under the authority of Laws of 1949, chapter 396. In his answer to the motion for the writ, the sole reason asserted by the auditor for his refusal to register the bonds is that the above statute is special legislation and unconstitutional in that it violates article 2, section 17 of the constitution of the state of Kansas, which provides:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.”
As presented by oral arguments at the submission of the cause, and by the briefs filed, the claim of unconstitutionality does not arise from the title of the act, which need not be npted, but from limitations in the body of the act. In section one of the act, it is provided that the board of education of any city of the second class, which is located in a county having a population of not less than 27,000 nor more than 32,000, and which county has an assessed tangible valuation of more than eighty million dollars, may issue bonds for specified school purposes in an amount not in excess of fifteen percent of the valuation of the tangible property within such district. Other provisions need no present notice.
In a preliminary way and in a way to show the complex situation arising from acts which have been enacted, it is noted that insofar as authority of boards of education of cities of the second class to issue bonds is concerned, that prior to the enactment of the statute now under consideration, what we may call the act of general application appears as G. S. 1935, 72-1820, which fixes the bond limitation at three and three-fourths percent of the assessed valuation, and that there were other acts affecting only certain of such boards. See, e. g., G. S. 1935, 72-1834, G. S. 1947 Supp. 72-1858, and especially G. S. 1947 Supp. 72-1851, which contains limitations quite like those presently involved and which fixes the limitation at eight percent of the assessed valuation of tangible property.
In view of the repeatedly declared rule that an act duly passed by the legislature is presumed to be constitutional (see cases collected in West’s Kansas Digest, Constitutional Law, § 48, and Hatcher’s Kansas Digest, Constitutional Law, § 16, and Statutes § 18) and that before the courts can declare it invalid, it must clearly appear to be unconstitutional (Leavenworth County v. Miller, 7 Kan. 479, Syl. ¶ 8; State v. Lawrence, 79 Kan. 234, 267, 100 Pac. 485; Barker v. Kansas City, 149 Kan. 696, 698, 88 P. 2d 1071) we first take note of the auditor's contention that the act in question is unconstitutional.
The auditor directs attention to certain counties in the state coming within the classification limits set forth in the statute to which reference is later made and to some of the statutes noted above, and without mentioning each case cited, recognizes the tests laid down in Barker v. Kansas City, supra, that:
"In determining whether a law enacted by the legislature contravenes the provisions of section 17 of article 2 of the state constitution that all laws of a general nature shall have a uniform operation throughout the state, and in all cases where a general law can be made applicable, no special law shall be enacted, the following tests are to be applied:
“(a) If a law of general form operates uniformly on all members of the class to which it applies, it is not open to the objection it is a special law if the classification is not an arbitrary and capricious one.
“(b) If a law applying to a specified classification of cities or governmental units is otherwise general in its form and its provisions are such that in the ordinary course of things the law might and probably would apply to other cities or governmental units coming within the specified classification, the law is a general and not a special law.
“(c) Although the title and form of a law may be general, whether a general or special law has been enacted is to be determined by what in the ordinary course of things must necessarily be its operation and effect.” [Syl. ¶ 1, (a), (b), (c).]
The auditor also relies on State, ex rel., v. Allen County Comm’rs, 156 Kan. 248, 133 P. 2d 165, where it was held:
“The legislature has power to pass laws which apply to and operate uniformly on all members of a class, but the classification created must be natural and genuine. The classification cannot be an arbitrary or fictitious one but must be based upon distinctions which have a reasonable and substantial relation to the subject matter involved.” (Syl. ¶ 1.)
He also directs attention to later cases such as State, ex rel., v. Schoeppel, 160 Kan. 396, 399, 162 P. 2d 80; Johnson County Comm’rs v. Robb, 161 Kan. 683, 687, 171 P. 2d 784; State, ex rel., v. Wyandotte County Comm’rs, 161 Kan. 700, 706, 171 P. 2d 777; Carson v. Kansas City, 162 Kan. 455, 177 P. 2d 212; and Board of County Comm’rs v. Robb, 166 Kan. 122, 132, 199 P. 2d 530; all of which recognize the rule that classifications made in a statute cannot be arbitrary or fictitious, but must be based upon distinctions which have a reasonable and substantial relation to the subject matter involved, and are germane to that subject matter.
Premised upon the rule set forth the auditor contends that before the court may say the classification made in the statute is not arbitrary and capricious, there must be some basis for distinction and that the distinction must be reasonable and germane to the purpose of the act; that the population of a county and its assessed value have nothing to do with the amount of bonds to be issued by a board of education as restricted by the valuation within the district, and that the effect of the limitation made in the act is such that it presently has application only to Barton county, with little or no likelihood of its ever being effective in any other county. The argument is somewhat illustrated by the following table showing population, assessed tangible valuation and number of second-class cities in every county of the state having a population of over 22,- 000 and less than 37,000, a leeway of 5,000 under and over the limitations set forth in the act.
County Second class cities Population Tangible valuation by thousands
1948 1949 1948 1949
1. Barton ................... 2 27,706 28,809 95,524 110,091
2. Butler .................... 2 32.915 32,940 65,006 69,716
3. Cherokee ................. 4 27,375 27,155 26,655 30,289
4. Cowley ................... 2 35,356 35,297 61,102 65,071
5. Douglas .................. 0 27.916 28,484 43,715 46,126
6. Labette ................... 2 31,956 31,932 36,879 38,605
7. Leavenworth ..............0 31,440 32,003 33,932 35,496
8. Lyon ..................... 1 24,742 25,381 49,170 51,684
9. McPherson ................2 23,305 23,260 64,666 68,365
10. Neosho ................... 1 22,436 22,326 28,450 29,733
11. Riley...................... 1 22,025 23,901 34,952 38,059
12. Saline ..................... 0 34,104 34,870 59,622 63,369
13. Sumner ................... 2 24,091 24,305 54,943 56,743
From the above it appears that at the time of its passage there were only five counties within the population range fixed by the act; and that Barton was the only county of requisite valuation; that two of those counties had no city of the second class and that the valuation in each of the remaining two counties was under forty million dollars.
Plaintiff’s argument that the statute involved is not unconstitutional and that it is entitled to have its bonds registered is summarized. After directing attention to the tests for determining constitutionality laid down in Barker v. Kansas City, supra, and that they were followed in Rural High School v. Brown County Comm’rs, 153 Kan. 49, 109 P. 2d 154, and Johnson County Comm’rs v. Robb, supra, it argues that classification is a legislative and not a judicial function; that the judicial function is limited to the sole question whether the classification is patently unreasonable or capricious, and not to determine whether it was the wisest or most proper, and where the question is raised if any state of facts can reasonably be conceived that will sustain it the existence of those facts must be assumed, citing Railway Co. v. Cowley County, 97 Kan. 155, 155 Pac. 18, where it was said:
“The function of the court is not to decide whether the classification is the wisest or best that could be made, but only to inquire whether it rests on a substantial basis and is germane to the purposes of the law.” (l. c. 158.)
It further cites Baird v. City of Wichita, 128 Kan. 100, 276 Pac. 77, and Thompson v. Reno County Comm’rs, 152 Kan. 610, 106 P. 2d 700, which support a part of the above statements. See, also, Board of County Comm’rs v. Robb, 166 Kan. 122, 131, 199 P. 2d 530, for a discussion of the same matters.
After directing attention to decisions that in considering whether a classification is arbitrary or capricious, the court must determine the question not upon proof of facts or conditions, but upon the theory that judicial notice supplies the proof (State, ex rel., v. School District, 140 Kan. 171, 34 P. 2d 102, and Barker v. Kansas City, supra, and cases cited), the plaintiff argues that factual bases of population and assessed valuation are not only common but proper for the classification made, citing State, ex rel., v. Kansas City, 134 Kan. 157, 4 P. 2d 422; Rural High School v. Brown County Comm’rs, supra; Miller v. Hickory Grove School Board, 162 Kan. 528, 178 P. 2d 214, and others of like tenor, and, after directing attention to certain counties, their population and assessed tangible property, makes an extended argument that a change in population or an increase in assessed valuation may bring other counties into the field of operation of the statute under consideration, and in connection therewith, reviews certain of our decisions, some of which are cited above, holding that such classifications were not unreasonable or capricious, were germane to the subject matter and were upheld.
The rules of decision of the question of constitutionality relied upon by the parties need no discussion. Those rules have been repeatedly stated, are consistent one with another, and are to be applied here. The difficulty arises from their application to the facts of which we take judicial notice pertaining to population and assessed valuations of particular counties, and which show that at the time of the passage of the act under consideration only Barton county was affected, and tending to show that in the ordinary course of things the act might or could apply, or the contrary, to other governmental units within the purview of the act, it having to be borne in mind at all times that the classification made in the act must have been based upon distinctions which have a reasonable and substantial relation to the subject matter of the act and are germane to it. Classifications based upon population or assessed valuation, or both, of a county, certainly may be said to be germane to legislation affecting the county and not arbitrary or unreasonable unless unduly restricted, but we cannot follow and approve an argument advanced by the plaintiff that school districts in second-class cities within the population limits fixed, but with a certain high assessed valuation, are in need of a higher bond limit than others in the same population range and that the legislature took cognizance thereof. We are not concerned with the wisdom of the legislation, but that the size of the county, or the amount of its assessed valuation, has anything to do with bond limitations of a school district, or is germane thereto, does not readily appear. If it had any connection at all, it would appear the higher the valuation of the county, the higher the valuation of the school district, and thus, as by the act, an unreasonable and arbitrary classification insofar as bond limitations are concerned. Disapproval of that reasoning, however, only goes that far. While a reference to the table of statistics above will disclose there may be doubt that in the ordinary course of things any county other than Barton will come within the purview of the terms of the act, and as to many types of legislation other than for schools, it might well be said the classification made was so restrictive as to be unreasonable and arbitrary, we have in the past been more tolerant of legislation affecting schools.
In Richardson v. Board of Education, 72 Kan. 629, 84 Pac. 538, the principal contention was that a general act pertaining to schools could not be amended by a special act, a phase of constitutional law with which we are not presently concerned. In the course of the opinion attention was directed to article 6, section 2, of the state constitution, which provides that the legislature shall encourage the promotion of intellectual, moral and scientific improvement by establishing a system of common schools, and it was said that the schools had always been considered the subject of special legislation, and that many schools had been organized and maintained under special acts which it would have been impossible to maintain under any general law then in existence or that could have been passed and a number of such statutes were mentioned, and attention directed to Eichholtz v. Martin, 53 Kan. 486, 36 Pac. 1064, where the creation of a school district by special act was upheld.
In State, ex rel., v. Board of Education, 122 Kan. 701, 253 Pac. 251, this court considered, with othei questions, a contention that a statute violated the uniformity provision of the constitutional section now involved. The subject matter of the act attacked permitted annexation for school purposes of territory outside the limits of second class cities. In holding that the statute did not violate the uniformity clause, this court said, in substance, that it was the prerogative and duty of the legislature to enact laws to fit the changing, developing needs of the people and that the situation of the Humboldt city school district was one which might well receive legislative attention; that the statute did not necessarily and exclusively apply to the Humboldt situation; that there were many counties in which there were two cities of the second class and with the growth of the state the future was bound to see that situation multiplied; that even if the situation at Humboldt was peculiarly unique at the time, a similar situation could develop anywhere at anytime. The opinion continues:
“Because of the all-important fact that school district populations and their needs for educational facilities cannot successfully be put in straitjackets and compelled to develop within artificial lines and limits, amendments to school laws occupy much of the time of the legislature and fill a very considerable part of our session laws.
“It is not easy to see how such numerous and frequent changes in the provisions of our school law can be dispensed with. The act here assailed is not fundamentally different from the common run of statutes which this court has been required to scrutinize time and again in the last half century.” (l.c. 707.)
And see, also, Rural High School v. Brown County Comm’rs, supra, where a statute pertaining to schools, attacked on the ground that it violated article 2, section 17, and other sections of the constitution, was upheld.
On the oral presentation of this cause, the plaintiff expressly disclaimed that the act under attack could be justified on the ground it was a special act, and held firmly to its contention the act was a general act meeting all requirements for its full validity, a logically sound position (State, ex rel., v. School District, supra). We shall not discuss this phase further than to say it is obvious the legislation was not intended to be a special act where a general act could not be made applicable.
By way of summary it may be said that it it somewhat difficult to say that the classification made in the statute under consideration is, in and of itself, entirely germane to the subject matter of the statute, but bearing in mind the liberality accorded to school' legislation, we cannot reach the conclusion that it clearly appears the statute is unconstitutional, and for that reason judgment must be and it is rendered for the plaintiff.
As has been previously pointed out, the only reason assigned by the auditor for his refusal to register the bonds was his doubt as to the constitutionality of the statute under which the bonds were issued, and for that reason no formal writ will issue at this time and no costs will be imposed (City of Council Grove v. Schmidt, 155 Kan. 515, 521, 127 P. 2d 250; Stevens v. McDowell, 151 Kan. 316, 323, 98 P. 2d 123, and cases cited) and it is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an original proceeding commenced in this court by the petitioner against the warden of the state penitentiary and the attorney general for a writ of habeas corpus to secure peti tioner’s release from custody and to prevent his being returned to Russell county for trial on an information to which reference is later made. The attorney general’s motion that the proceeding be dismissed as to him has been sustained heretofore.
The petitioner’s claim of right to release grows out of the following facts, which are not in dispute.
On January 3, 1944, petitioner was arrested and confined in the Russell county jail on a charge of obtaining money by false pretense. Before he could be tried, and on January 11, 1944, he escaped, and under date of January 14, 1944, an information was filed directly in the district court of Russell county, charging him with the crime of breaking jail and with being a fugitive from justice, as authorized by G. S. 1935, 62-805, and on the same day a warrant was issued. It is trial on this information which the petitioner seeks to avoid. The petitioner was not apprehended by the sheriff of Russell county but on April 19, 1944, in the district court of Ellis county he pleaded guilty to the crime of felonious assault, was sentenced to the state penitentiary for a term not exceeding ten years, and was duly committed under that sentence. Under date of November 1, 1944, the sheriff of Russell county sent to the warden of the state penitentiary a copy of the warrant for the petitioner issued in Russell county and asked that upon completion of his sentence the warden hold the petitioner for the sheriff. Under date of October 15, 1945, the board of administration acted upon the petitioner’s application for a parole from the Ellis county sentence and he was paroled to the sheriff of Pawnee county "as per detainer filed by the Sheriff’s Office at Larned, Kansas,” and on November 9,1945, in the district court of Pawnee county, petitioner pleaded guilty to an information charging theft of an automobile, was sentenced to the state penitentiary .and was duly committed under that sentence. Under date of April 5, 1949, the board of administration considered petitioner’s application for a parole and noted the detainer from Russell county. Before the petitioner could be delivered to the sheriff of Russell county, the instant proceeding was commenced, and under order of this court, petitioner gave bond and was paroled to his wife. Included in the record presented is a photostatic copy of the trial docket of Russell county, showing “5/1/44 Defendant in Penitentiary from Ellis County”; that on November 13,1947, defendant’s motion for a discharge because of delay in trial was overruled; that on January 6, 1948, another similar motion was over ruled, and “May 3 (1948) Defendant in penitentiary, State ready for trial, 10/6/48 State ready for trial, 5/2/49 State ready.”
The record contains the full text of both motions for a discharge. They are that and no more. Neither can be construed as a request for a trial.
In his petition for a writ the petitioner alleges a part of the facts above detailed. The gist of his petition is that upon call of the docket in Russell county at each regular term since January, 1944, the state announced petitioner was in the state penitentiary and the case was continued for the term; that petitioner has not caused any delay nor made any application for a continuance and that the continuances have not been because of want of time to try him but because the state elected not to try him until after the expiration of his time in the state penitentiary; that at all times ever since the filing of the information in the district court of Russell county and the issuance of the warrant, petitioner has been in the exclusive custody of the state of Kansas and in the custody of no other jurisdiction, and that he has been deprived of a speedy trial as guaranteed by section 10 of the bill of rights of the constitution of Kansas.
The response and return of the warden alleges the various convictions of the petitioner and his paroles, and the filing of the information in Russell county charging jail breaking and what happened after the warrant was issued. Attached to the response are photostatic copies of the records and from which the facts above set forth are gleaned. Respondent asks that the petitioner be denied relief.
In a preliminary way it may be said we have here no contention that the prosecution in Russell county was not commenced in time, nor, because of the facts, is there any contention that the statutory provisions for discharge of a prisoner not brought to trial before the end of the second term or third term as the case may be (G. S. 1935, 62-1431 and 62-1432) have application here. The sole question is whether the petitioner has been deprived of a speedy trial as guaranteed by section 10 of the bill of rights of our state constitution, which in effect, provides that in all prosecutions the accused “shall be allowed ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.”
Both the petitioner and the respondent recognize that the precise question now presented under the facts of this case has not been treated in our decisions.
In his brief, the petitioner directs our attention to an annotation appearing in 118 A. L. R. 1037 on the constitutional or statutory right of an accused to a speedy trial as affected by his incarceration for another offense, from which it appears that the general rule, followed in a majority of the states, is that under a constitutional provision guaranteeing to an accused a speedy trial the state may not deny such a trial even though the accused is incarcerated in one of the state's own prisons under prior conviction and sentence. We need not discuss that rule for in our opinion it is not controlling here.
The respondent contends the petitioner is not entitled to the writ and directs to our decision in The State v. Bowman, 106 Kan. 430, 188 Pac. 242. In that case the primary question was whether the prosecution had been begun in time. At the time the complaint was filed and the warrant issued the accused was in the state penitentiary serving a sentence for another crime. The warrant was not served until the defendant was finally released from the penitentiary. Without reviewing all the facts, or the reasoning of the opinion, it may be said the defendant there contended that, if the sheriff had requested it, the defendant would have been paroled or released to the sheriff for arrest and prosecution, that the evidence disclosed lack of diligence by the sheriff, and that the warrant not having been served within the period of the statute of limitations, the prosecution had not been commenced in time. We are presently interested only in that part of the opinion holding that the sheriff is not authorized to execute a warrant during the time the defendant is confined in the state- penitentiary, and such time may not be credited to the defendant in computing the statutory period, as being unnecessary or unreasonable delay in executing the writ; and that the sheriff’s duty does not require him to request parole or other release of the defendant from the state penitentiary for arrest and prosecution even if such a request would have availed.
Applying the rule of the Bowman case to the facts of the instant case we find that from about April 19, 1944, to about October 15, 1945, the petitioner was confined in the state penitentiary; that on the latter date he was paroled to the sheriff of Pawnee county for trial and from about November 9, 1945, to May 4, 1949, he was confined in the penitentiary. On the latter date, and at the time the sheriff of Russell county was about to take him into custody under the warrant issued out of the Russell county district court under date of January 14, 1944, this court made its order as heretofore set forth. The result is that the warrant has never been served upon the petitioner. Just how he has been deprived of a speedy trial does not appear. He was charged with the commission of a felony (G. S. 1935, 21-736) for which he could not be tried unless personally present (G. S. 1935, 62-1411). Although there might possibly be some circumstances under which he could have appeared voluntarily for trial, none such could obtain when he was a prisoner in the state penitentiary. His attendance could be compelled only as the result of a duly issued warrant, duly served upon him (in this case under G. S. 1935, 62-805). Under the facts of the case, there was no time when the state could have produced the accused petitioner in the Russell county district court and proceeded to trial, and it follows that when the state could not try him, because of the defendant’s absence, it did not deny him a speedy trial.
The writ prayed for is denied.
Price, J., concurs in the result. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action by plaintiff to cancel a deed to real property. Judgment was for plaintiff. Defendants have appealed.
One of the defendants was the daughter of plaintiff and the other defendant was her husband. The petition alleged the ownership by plaintiff of two town lots; that about August 1, 1943, plaintiff wrote defendants in California offering to convey to them the two lots if they would move to Wichita and make a home for him and support him in the station to which he had been accustomed; that he did not keep a copy of the letter; that the defendants came to Wichita, stated they wished to accept the proposition and would move into the property and provide for plaintiff for the rest of his life; that they moved into the property and all lived together as a family; that on January 4, 1945, plaintiff conveyed the lots to defendants with a reservation of the right to possession for the rest of his life; that from the date of this conveyance the members of defendants’ family began to criticize and to make statements to plaintiff that wounded his sensibilities and rendered his situation intolerable; that after April, 1945, defendant Caladonia Ternes told plaintiff that he was rotten and his use of the bathroom rendered it unfit for use by defendants’ daughter and talked in such a manner as to leave the impression on the mind of plaintiff that he was not wanted in the family and such conduct continued until April, 1947, at which time defendants moved away from the property and established a place of residence; that from that time on the defendants had failed consistently to provide plaintiff with the necessaries; and they had not made a home for him; that the only consideration for the execution of the deed was the contract alleged.
The petition prayed that the deed and the contract under which plaintiff agreed to convey the property to defendants be canceled.
The defendants answered first with a general denial, then a denial that plaintiff was the owner of the property in question; admitted that defendants came from California to Wichita at the request of plaintiff and moved into the house and made a home for plaintiff; and alleged that on January 4, 1945, plaintiff made a division of his property amongst his children and part of that division was a voluntary and irrevocable gift of the lots in question to his daughter Caladonia; that in January, 1947, plaintiff demanded that Caladonia execute a mortgage on the property; that she refused to do so and from that time on plaintiff made threats and demands against her, whereupon her health and well-being was injured; that it was finally agreed by counsel representing both parties that defendants would move from the property, giving to plaintiff the full use and occupancy of it; that defendants at great cost moved to another home in Wichita and plaintiff remained as the occupant of the premises; that plaintiff ought not be admitted to say that any condition attached to his conveyance for the reason that he conveyed to Caladonia by warranty deed except for the reservation of a right of occupancy for his natural life.
The trial court found that the allegations of the plaintiff’s petition were true, also that Caladonia had expended $278.52 for taxes while she was occupying the property with her family. The final judgment was that the contract pleaded, as well as the deed, be set aside; the title of plaintiff be quieted; that Caladonia have a judgment against plaintiff for $278.52, and that this amount constitute a lien upon the land, and upon payment of that amount the liability be discharged.
The defendants have appealed and set out as specifications of error that the trial court erred in overruling their demurrer to plaintiff’s evidence, in admitting incompetent testimony, in basing its judgment on incompetent testimony, in permitting plaintiff to prove an agreement of defendants to come and live with him in his home when that agreement had been superseded by a warranty deed for the property with reservation as to occupancy, in finding that plaintiff was the owner of the property, and in rendering judgment for the plaintiff and against defendants.
Defendants argue these specifications by propounding three questions — the first of these is “Where a father induces his daughter to move from another state and voluntarily deeds property to her, allegedly in consideration of support, is he entitled to equitable relief where he provokes quarrels and orders her off the property?” In arguing this point, defendants take the position that plantiff cannot resort to equity to secure redress of a wrong when he by his misconduct provoked the wrong of which he complains. Defendants argue this point as though it was established that plaintiff had caused by his misconduct defendants to move away from the home. The record does not bear this out. Plantiff proved by his own testimony, which the trial court was entitled to believe, that he conveyed the lots to Caladonia in return for her moving in with him and making a home for him and promising to continue to do so as long as he should live. The defendants denied this, but it was all a matter of which testimony the trial court believed. Next the plaintiff pleaded and proved that as soon as he had made the conveyance the attitude of the whole family changed and it became impossible for him to continue to make a home with them. The defendants denied this in pleading and with testimony but there was substantial evidence to establish the above allegations Of the petition and the trial court believed it. The whole affair was all a matter of proof.
The rule is stated in Martin v. Martin, 44 Kan. 295, 24 Pac. 418, as follows:
“It is a well settled equitable rule that a court of equity will fully rescind a conveyance by parents to a son in consideration of the covenant of the son to support and maintain them, in case of a breach of such covenant.”
The above rule is approved in Simmons v. Shafer, 98 Kan. 725, 160 Pac. 199; Holland v. Holland, 89 Kan. 730, 132 Pac. 989; and 12 C. J. S. 989; also, Johnson v. Paulson, 114 N. W. 739.
Defendant propounds the other questions, as follows:
“After partial performance by the grantee of her agreement to support the grantor, has the grantor waived the alleged breach of performance when the grantor prevents the grantee from further caring for him?
“If the grantor prevents further performance of an agreement to support him, is the grantor estopped to take advantage of such failure to secure equitable aid to cancel or rescind the deed given for support?”
What has already been said disposes of these questions.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was a proceedings for the exercise of the right of eminent domain. The Great Lakes Pipe Line Company, a corporation, hereafter referred to as the Company, appeals from a judgment fixing the damages of the landowners.
In its petition for exercise of the right of eminent domain the Company stated it desired to acquire a thirty-foot right of way to construct pipe line or lines parelleling and adjacent to its two existing lines “to be buried at least two feet under the surface of the ground” over lands owned by Charles E. Scott, and which need not be described. On October 8, 1945, the district court found that the Company had the power of eminent domain and that acquisition of the right of way was necessary to the Company’s corporate purposes, and it appointed appraisers, who filed their report fixing the damages to the landowners at $1,800. On November 17, 1945, the Company filed its appeal from the appraisement and at the same time paid the court costs and appraisers’ fees and deposited the sum of $1,800 with the clerk of the court under an order of the court that that sum should be held by the clerk pending final determination of the appeal and the further order of the court. Before the appeal was tried Scott died, and an administrator of his estate was appointed, the action was revived, and his administrator substituted. There is no controversy as to any of the above matters. No question is raised as to the Company’s right to appeal under the circumstances and that question will not be discussed.
When the appeal was heard in the district court each party offered proof of the value of the land taken and of the damage to the land not taken. There was no dispute but that the land taken amounted to 1.894 acres. It was stipulated that there were eighty-six acres in the field involved. At the close of the evidence it was agreed the court should not submit the cause to the jury for a general verdict but should submit special questions and then render such judgment as was proper. The court then instructed the jury and submitted questions which the jury answered. Upon the Company’s request the jury was returned to make a more definite answer to question No. 3. The questions and answers were as follows:
“1. What was the reasonable market value per aere of the 86-acre tract of land referred to in the evidence in this case as of the month of October, 1945?
“Answer: $400.00 per acre.
“2. What was the reasonable market value of the right of way, described in the evidence in this case, acquired by the plaintiff Great Lakes Pipe Line Company, as of the month of October, 1945?
“Answer: $1,200.00.
“3. What factors, disclosed by the evidence, do you take into consideration when fixing the market value of the right of way, as answered in Question No. 2?
“First Answer: (Reasonable market value as of October, 1945. Additional $400.00 granted due to type of easement.)
“Revised Answer: Reasonable market value of approximately two acres of land involved as of October, 1945. Also character of easement granted.
“4. Do you find from the evidence that the remainder of the tract not taken by the condemnation proceedings was damaged as a result of the taking of the right of way by the plaintiff Great Lakes Pipe Line Company?
“Answer: Yes.
“5. If you answer Question No. 4 yes, then state the amount of said damage.
“Answer: $35.00 per acre.
“6. If you answer Question No. 4 yes, then state specifically in what manner the taking of the right of way caused the remainder not taken to depreciate in value.
“Answer: Rendered less desirable from the standpoint of agricultural use and resale value due to type of easement.
“7. Was the highest and best use of this tract of ground for which it had a market value as of October, 1945?
“(a) Truck garden use?
“(b) Industrial use?
“Answer: Truck gardening.”
The Company’s motion, that the answers Nos. 2, 3, 5 and 6, be set aside as contrary to the evidence, unsupported by the evidence or the result of bias, prejudice and passion, was denied except that answer 2 was reduced to $757.64. The Company’s motion for a new trial was likewise denied. The landowners’ motion that they be allowed interest from October 8, 1945 (date of the order allowing the petition) to the date the judgment is paid, was allowed. Judgment was rendered against the Company for $3,697.64 and interest from October 8, 1945, and for costs. In due time the Company perfected its appeal from the judgment and adverse rulings. In its abstract it specifies error in the particulars hereafter discussed.
The company’s first contention is there is no evidence to support the jury’s answer No. 5 that the damage to the land not taken was $35 per acre. It directs our attention to Kiser v. Phillips Pipe Line Co., 141 Kan. 333, 41 P. 2d 1010, and to Kennedy v. Great Lakes Pipe Line Co., 149 Kan. 48, 86 P. 2d 521, and argues that the evidence as to damage to land not taken was limited to damages to the land for industrial purposes; that the jury by its answer No. 7 found its highest use was for agricultural purposes and there is no evidence as to damage for that use. In the Kiser case the jury, answering special questions, found the amount of damages to items that were temporary and to real estate which was permanent, but it also found that the damage to the real estate was temporary. This court held that in view of the latter answer, there could be no recovery for the permanent damages. In the. Kennedy case a similar situation was disclosed. The jury found the amount of damages to crops and also to the land, but by another finding found the damage to the plaintiff was temporary. This court eliminated the damage to the real estate. In our opinion these cases do not control here. There is no finding that the damage is temporary, and so far as the landowners are concerned their evidence proved permanent and not temporary damages. It is true that .witnesses were questioned at length about the most advantageous use to which the lands could be put, and those called by the landowners expressed an opinion that it was for industrial purposes, but without reciting the testimony, they also testified to the present use of the lands for farming purposes. The Company’s witnesses stated the most advantageous use was for agricultural purposes and while they expressed the opinion the right of way did not damage the remainder of the land, that testimony was disputed, or, on cross-examination, was shown to be arrived at without regard to all factors involved. The landowners’ testimony as to damage to land not taken was from $40 to $50 per acre. Under instructions of which no complaint was made, the jury had a right to take into consideration that while the pipe lines had to be laid two feet below the surface, the Company was under no obligation to maintain them in' that condition. The jury could also consider that although the two lines previously laid by the Company had been so installed, by reason of washing or other cause, at places they were now not buried over a few inches. That this situation might soon arise with respect to new lines laid can hardly be said to be speculative, and that if so, it made farming of the entire tract more difficult was certainly an inference the jury was entitled to make. We need not discuss the fact that the jury, as well as men in common, know that an easement dividing a tract of land adversely affects its value as a unit. The Company’s contention there is no evidence to support the jury’s answer No. 5 cannot be sustained.
Appellant next contends that it had requested the court to instruct the jury that in determining the value of the right of way taken it should consider the value of the use remaining in the owner, particularly the right to use the property for farming or any other use not in conflict with the use granted. In our opinion this request was substanially covered by the court’s instructions which, among other things, advised the jury they should take into consideration the use, if any, of the land included in the right of way to the owner of the land, and all other matters and things disclosed by the evidence touching on the point. After directing attention to the fact the jury found the market value of the entire tract was $400 per acre, and that the court had cut down the amount found by the jury in its answer No. 2 from $1,200 to $757.64 (being $400 multiplied by 1.894, the number of acres taken), the Company argues that the evidence discloses that the use of the easement for farming purposes was not interfered with; that the fact is that the only damage occurred when the line was constructed; that it was temporary in nature, and that there was no actual damage. This argument is predicated on a consideration of evidence favorable to the Company and ignores evidence favorable to the landowners, some of which is mentioned above. It also ignores the fact that under the easement taken, the Company is entitled to lay as many lines as it is possible to put in the strip condemned. If we give full effect to the argument as made by the Company, it leads to a conclusion that if the line which has been laid had been installed during a period when there was no crop on the land, the landowners would not be entitled to anything. In our opinion it may not be said that the judgment as to the value of the land taken is not supported by the evidence nor may it be said that that part of the total amount allowed should be stricken from the judgment.
The Company also argues that even if there was testimony to support the judgment as to the value of the right of way and of the damage to the land not taken, the judgment is nevertheless excessive. The argument on this contention is predicated on the Company’s interpretation of the evidence. No particular purpose will be served by setting forth a detailed statement showing what each witness testified. We have examined the record fully, have considered the fact the jury under admonitions of which no complaint is made was taken to the scene to view the land, and have concluded that it may not be said the judgment is excessive.
And finally, the Company contends the court erred in allowing interest. In its instructions to the jury, nothing was said concerning interest, and no special question was asked with respect thereto. As has been noted the motion of the landowners for interest was allowed. The gist of the Company’s contention is that the evidence disclosed that the farm had been rented continuously since the proceeding was instituted, without any diminution of rents, and that as the landowners suffered no loss by reason of the condemnation, it is more than full compensation to have interest added after the value and amount of the damage is determined. In support it quotes at length from Irrigation Co. v. McLain, 69 Kan. 334, 76 Pac. 853. In that case it was said:
“In condemnation appeals the issue is, What shall be full compensation? Interest is allowed merely as a means of securing such compensation. If, upon the condemnation of land, complete deprivation do not follow at oncd, still, further tenure is rendered precarious. Possession may be disturbed at any time, and all property rights are exercisable only under doubt and uncertainty as to their duration. As a recompense for the loss attending this embarrassed use of the land and this qualification of dominion over it pending the payment of the condemnation money, interest may be allowed. If, however, as a matter of fact the owner should suffer no injury in these respects no occasion for compensation by way of interest would arise. The owner should not have his land and interest too, for the constitution does not contemplate the payment of anything beyond full compensation. It is the better rule, therefore, to allow interest on general damages from the date of condemnation, then reduce the amount by the value, if any, to the owner of whatever subsequent possession and use of the land he has enjoyed. (2 Lew. Em. Dom., 2d ed., § 499; Rand. Em. Dom. § 280.) The instructions given, to which due exception was taken, gave the jury no opportunity to apply this rule, although the evidence clearly indicated an opportunity for its just and beneficial use.” (l. c. 341.)
In the case before us, the question of extent of use, amount of rents, etc., was inquired into at the trial, but the Company offered no proof of the value of the limited use the landowners could or did make of the strip condemned.
No question of interest was raised by the instructions, and under the instructions, to which no complaint was made, the jury was directed to determine the reasonable market value of the right of way and easement as of October, 1945, and the damages, if any, to the remainder of the land. There is no showing that the jurors considered interest in answering the questions submitted, and we cannot assume that they did. That however is only a part of what we have to consider. When the appraisers’ report was filed, the Company paid the award made and immediately procured an order that the amount thereof should be held until its appeal was determined, thus preventing the landowners from receiving the benefits. The Company immediately proceeded to take possession of the right of way and installed its pipe line. Thus, the Company had the benefit of its condemnation and the landowners, by reason of the Company’s procuring the court order, had nothing. The Company had a right to appeal. If the award on appeal was less than the award of the appraisers, there would be good reason to say it should not pay interest, but it took the chance that the final award would be greater. In Flemming v. Ellsworth County Comm’rs, 119 Kan. 598, 240 Pac. 591, proceedings to lay out a road were under consideration. In disposing of a contention concerning the right to recover interest it was said:
The general rule in. such proceedings is that where there is a substantial lapse of time between the actual taking of the property and the payment, interest on the damages for the taking of the property from the time of taking until the time of final payment, or what amounts to the same thing, damages in the nature of interest for delay in payment of compensation, is properly allowed. (20 C. J. 806; 10 R. C. L. 163; Cohen v. St. L. Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 853; Irrigation Co. v. McLain, 69 Kan. 334, 76 Pac. 853; Raney v. Drainage District, 84 Kan. 688, 115 Pac. 399; Smith v. Railway Co., 90 Kan. 757, 136 Pac. 253; Calkins v. Railroad Co., 102 Kan. 835, 172 Pac. 20.) (l. c. 602.)
And see also Bruna v. State Highway Comm., 146 Kan. 375, 69 P. 2d 743, where the right to recover interest was considered and where the rule of the last cited case was approved.
We are of opinion that under the facts of this case, the matter of interest did not enter into the jury’s determination of the amount of damage sustained by the landowners as of the date of the taking, that delay in the payment to the landowners of damages for the taking is attributable to the Company, that the answers of the jury as to the value of the land taken and damage to- the remainder, approved by the court and made the basis of its judgment, warranted the court in further adjudging that that amount should bear interest as provided in the judgment.
No error appearing, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.;
This is a workmen’s compensation case. Respondent prevailed and the claimant appeals.
The district court found claimant was totally disabled for an indefinite and problematical period of time. Respondent contends there was strong evidence to the contrary but admits it is bound by the court’s finding where, as here, there is substantial testimony to support the finding.
The trial court, however, also found:
“Claimant’s disability is due to lead poisoning contracted in and arising out of and in the course of his employment with the Respondent; that same resulted in an occupational disease arising out of Claimant’s employment with the Respondent in Cherokee County, Kansas, and as such does not constitute an injury by accident within the meaning of the Kansas Workmen’s Compensation Act under the evidence and record in this proceeding.” (Our italics.)
Claimant appeals contending the disability was the result of an injury by accident. On that point respondent replies there is ample evidence in the record to support the finding of the district court and that on appeal our only concern is with evidence which supports the finding and not with evidence which is contrary thereto. That, of course, is the rule on appellate review whether compensation has been allowed or denied. (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846, 148 A. L. R. 1131; Pearson v. Electric Service Co., 166 Kan. 300, 201 P. 2d 643.)
Respondent cross-appeals from a finding of the trial court that it was not prejudiced by claimant’s failure to give notice of his alleged injury within ten days as required by G. S. 1935, 44-520. We shall first consider the principal appeal. The issue on that point is whether there is substantial evidence in the record to support the court’s finding claimant’s disability resulted from an occupational disease arising out of and in the course of his employment rather than from an accident.
Claimant had been employed by respondent for a period of over three years. He worked in the white lead department of respondent’s smelter at Galena. White lead is produced by heating lead ore in furnaces to about 1,250 degrees. The lead dust, fumes and smoke caused by this process passed through a series of round metal tubes, four to five feet in diameter, called trails. The trails extend approximately twenty feet above the furnace. At the top of the first trail is a gooseneck which allows the lead dust, fumes and smoke to enter into the second trail. At the bottom of the second trail is another gooseneck which allows these substances to enter the third tube or trail. There were about fifteen of such trails in the series between the furnace and the bag room where the white powdered lead is finally collected in bags.
At the bottom of these trails there is a slide which may be removed to allow white lead which is deposited there to be removed into an auger which also forces the deposit to the bag room. In the process some of the white lead forms on the inside walls of the trails. Claimant’s duties were to pull the slides at the bottom of the tubes to allow the deposit to drop onto the auger. Once every day he had to clean a door to the trails. Each day he was required to clean another opening on the No. 1 trail. Also every day he was required to beat on the outside walls of the trails over the furnace with a wooden maul, the latter process requiring ten or fifteen minutes.
In the middle of November, 1948, the white lead had become discolored with rust. On such occasions the trails had to be cleaned on the inside. During such cleaning process the furnaces were shut off. Entrance into the trails was had by removing a small plate door from the side of the trail, the hole being just large enough to permit a person to enter. The inside walls of the trails were cleaned with a putty knife and wire brush. Claimant was furnished and used a respirator regularly in the performance of his duties both inside and outside the trails. While in the trails claimant would work approximately one or one and a half hours at a time. When lead fell to the bottom of the trail it would increase the density of the dust with the result that claimant breathed some of the dust which got inside the respirator. After remaining in the trail for the period indicated he would come out of the trail for ten or fifteen minutes. During that period he would free the respirator and his clothing of as much lead dust as possible.
In the foregoing statement we have omitted all reference to testimony respecting claimant’s inhalation or absorption of lead dust and fumes during the three year period of his employment while working outside the trails. That testimony has been omitted to avoid repetition and will be referred to presently in connection with a specific contention.
The claim for compensation was predicated on an accidental injury wnich it is alleged occurred on or about November 17, 1948, while claimant was cleaning trails in the lead smelter. The claim stated the nature of the injury thusly:
“Body and all parts and members thereof injured or affected by injury.”
Although the claim stated claimant did not return to work after his injury on or about November 17, 1948, it is admitted he worked until December 14, 1948, as found by the court. As previously stated respondent concedes there is testimony to support the court’s finding that on December 14, 1948, claimant’s disability was total and of indefinite duration. We need, therefore, not narrate the testimony showing such disability.
Claimant’s theory was and is that he suffered an accidental injury during the three-day period he worked in the trails. His counsel state: '
“There is no evidence in the record establishing claimant’s disability is due to a day to day exposure to lead dust over a long period of time which would be necessary to establish his disability as being due to any occupational disease as found by the Court.”
This contention requires an examination of the record relative to his work during his three-year employment, other than in the trails, and its effect on claimant. As abstracted claimant testified in part:
“I worked for the Eagle-Picher Company for about three years and two weeks and all this employment was in the white lead department, where white lead is produced.
"Once a day we had to clean the door to the trails . . . and another opening on Number One Trail had to be cleaned every day. We cleaned out white dust pigment, by pigment I mean white lead. In cleaning these doors every day I would get some dust in my face, especially over the furnace and I would breathe some of this dust into my system. Also every day I had to beat the trail over the furnace with a wooden maul and the dust inside of the trail would fall down into the furnace and come out the doors and on the side of the doors and come up in my face. This would last for a period of ten or fifteen minutes a day and I would breathe this dust into my body. I had been doing this jor the period oj time that I spent at the smelter until November of 1948.” (Our italics.)
He also stated:
“During the three years that I worked at the smelter in the white lead department I would breathe this white lead dust as it flew up in my face and it caused a burning sensation in my lungs, and it was hot and would make me weak and sick.” (Our italics.)
The record further discloses claimant testified as follows:
“Q. When you would breathe it, how would you feel it, in what way would you feel it? You can’t say it would affect your lungs, but how did it affect you? A. It was a kind of burning sensation.
“Q. Where was the burning sensation? A. In my lungs.
“Q. What else did you notice when you breathed it? A. It was so hot, and this dust is so strong it would make a person weak, make me sick.” (Our italics.)
The record discloses Doctor J. S. Hoffman, a witness for claimant, testified:
“It has been definitely shown that lead can be absorbed through the skin, lungs and intestinal tract. Considering the nature of work that this patient has been doing, especially his recent exposure in 1948, he probably absorbed lead through all of these mechanisms. Which portal of entry caused the largest absorption of lead is incidental, in as much as it is the total amount of lead absorbed by the body that determines the amount of lead poisoning." (Our italics.)
While the foregoing statement of Doctor Hoffman stressed claimant’s recent exposure in 1948 it clearly also recognized his lead poisoning during the entire three-year period in determining the total amount of such poisoning. The same witness also recognized the fact of lead poisoning prior to the middle of November, 1948, by the following statement:
“This patient has been exposed to lead particles and fumes over a period of three years, including a very heavy exposure about the middle of November 1948.” (Our italics.)
A similar view was expressed by Doctor H. A. Browne, a witness for respondent, who had treated respondent’s employees for many years, as follows:
“I don’t think there is any question that the men at the Eagle-Picher lead plant do get affected by the lead fumes. A man that is in that atmosphere or similar atmosphere where a man has that occupation it is just common sense to know that they are going to get some of it.” (Our italics.)
In view of the record we cannot say there was no evidence claimant suffered disability from lead poisoning in connection with his regular day-to-day employment over the three-year period. While it is true there was evidence he was exposed to a greater concentration of lead dust during a three-day period in November, 1948, we cannot say the court was compelled to believe claimant suffered total disability solely during that brief period. As indicated there is evidence to support the view claimant’s disability was the result of daily lead poisoning over the entire three-year period of his employment including the three days he worked in the trails. The court found his disability resulted from occupational disease. There is evidence to support the finding.
Had the district court found lead poisoning, resulting in total disability, occurred during the three day period and constituted an accidental injury, as claimant contends, we might now be called upon by respondent to determine the question claimant presently attempts to submit, namely, whether inhalation and absorption of lead dust and fumes in concentrated form over a three day period constitutes an accident within the meaning of the workmen’s compensation act. Manifestly this court should not attempt to determine so vital a question absent a record which clearly presents that issue.
It is true, as counsel for claimant contend, there was testimony by Doctor Hoffman that, in his opinion, claimant’s disability resulted from exposure to the high concentration of lead fumes during the days he worked in the trails; that the breathing of lead dust by claimant and the sequences following constituted a trauma to the body of the claimant. It is also true claimant testified he did not have his present ailments and disability prior to the days he worked in the trails. All this testimony would become highly important had the court found claimant’s disability did not result from an occupational disease but from an accidental injury. The court found otherwise and, as stated, we are now concerned only with testimony which supports the finding made. The court had a right and a duty to consider all parts of the testimony of every witness and to give to each part thereof the credence and weight the court believed it deserved. For example while there was testimony by Doctor Hoffman concerning traumatic injury, as above stated, the doctor on cross-examination also testified:
“Q. It was not due to any blow to the body? A. Well, the word ‘blow’ is a rather broad term. If you mean by any injury to the body or damage to the body, I would say yes, there was damage to the body.
“Q. Was the damage caused by the lead poisining or was it the damage that caused the lead poisining, which? A. The damage was caused by the absorption and inhalation of the lead.
“Q. But the lead poisoning that you find was not caused by a blow to the body of any type? A. Lead poisoning is only caused by the absorption of lead.
“Q. It is only caused by the absorption of lead? A. Yes, sir.” (Our italics.)
In Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846, 148 A. L. R. 1131, we again said:
“It is not for us to say what testimony should be given credence or what evidence should be disbelieved.” (p. 365.)
Since there is evidence in the record which the district court could, and did, believe and which supports the finding it made, we cannot disturb the result.
In view of this necessary conclusion we need not discuss inter esting decisions cited by the parties pertaining to industrial diseases and accidental injuries. Nor need we treat respondent’s cross-appeal.
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42,
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46,
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1,
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113,
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92,
69,
83,
31,
-33,
-98
] |
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