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PlERRON, J.:
Joshua Clary appeals from his jury trial convictions of aggravated kidnapping, rape, and criminal threat. On appeal, Clary argues that (1) the State failed to present sufficient evidence to support a unanimous jury decision for alternative means involving the victim and another under the trial court’s jury instructions for aggravated kidnapping; (2) the trial court erred by denying his request for a mistrial based on witness testimony presented by the State; and (3) the trial court erred by denying his request for jury instructions on the lesser included offenses of kidnapping and criminal restraint.
Clary lived with his girlfriend, E.H., at an apartment complex in Pittsburg, Kansas. On June 2, 2009, at approximately 6 a.m., E.H. awoke to discover that Clary was on top of her and had a box cutter pressed against her face. At trial, she testified that Clary told her that he was “going to cut her fucking eyes out.”
An altercation between E.H. and Clary ensued that lasted for several hours. E.H testified that Clary called her several profane names, punched her, and slapped her. At trial, E.H.’s neighbor stated she could hear screams and yells from E.H.’s apartment. E.H.’s neighbor also testified that she heard Clary tell E.H. that he was “going to kill her.” During the altercation, E.H. tried to defend herself and attempted to escape from the bedroom but was unable to do so.
Sometime during the altercation, Clary left the bedroom. E.H. testified Clary told her not to leave. She testified she did not leave the bedroom because she was afraid and did not know where Clary was. After approximately 30 minutes, Clary returned to the bedroom with a knife and a phone. Clary ordered her to take off her clothes. He then ordered her to get on the bed. E.H. testified that Clary climbed on top of her, placed the knife against her skin, and inserted his penis into her vagina. E.H. testified she told Clary to stop on several occasions and that he was hurting her. After the intercourse, the fighting between E.H. and Claiy continued.
At approximately 11:56 a.m., E.H.’s mother, who also resided at the apartment complex, knocked on E.H.’s door. Clary answered the door. While Clary spoke to E.H.’s mother at the entrance to the apartment, E.H. escaped the apartment by walking beneath Clary’s arms and going out the front door. E.H. went to her mother’s apartment and locked herself in the bathroom.
Later that day, E.H. went to the hospital where the hospital staff conducted a rape examination. While at the hospital, E.H. also spoke with two law enforcement officers and told them what had happened.
On June 3, 2009, the State charged Clary with aggravated kidnapping, rape, aggravated assault, and criminal threat. Clary’s case proceeded to a trial by jury. The jury found Clary guilty of aggravated kidnapping, rape, and criminal threat.
Clary timely filed a notice of appeal from his convictions.
The first issue we consider is whether the State failed to present sufficient evidence to support a unanimous jury decision for the aggravated kidnapping charge.
Before consideration of the arguments advanced by Clary, we must first consider the State’s argument that this issue is not properly before the court because Clary has raised it for the first time on appeal. To support this argument, the State cites the general rule that appellants cannot raise new issues for the first time on appeal. See State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003) (issue not presented to the lower court will not be considered on appeal).
The State, however, cites no authority for the specific proposition that a challenge to the sufficiency of the evidence before the trial court is necessary to preserve it for appeal. “There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court in order to preserve [it] for appeal.” State v. Farmer, 285 Kan. 541, Syl. ¶ 1, 175 P.3d 221 (2008). Consequently, this issue is properly before us.
Clary argues the evidence was insufficient to convict for aggravated kidnapping. As will be explained below, Clary’s argument assumes this is an alternative means case. A jury is instructed on alternative means when “ ‘a single offense may be committed in more than one way.’ ” State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]). If so, “there must be jury unanimity as to the crime charged, but not as to the particular means by which the crime was committed, so long as substantial evidence supports each means.” State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010).
The trial court instructed the jury “each of the following claims must be proved”:
“1. That the defendant took or confined [E.H.] by force or threat;
“2. That it was done with the intent to hold such person: to inflict bodily injury or to terrorize the victim, or another;
“3. That bodily harm was inflicted upon [E.H.]; and
“4. That this act occurred on or about the 2nd day of June, 2009, in Crawford County, Kansas.
“The State claims distinct multiple acts which each could separately constitute the crime of Aggravated Kidnapping. In order for the defendant to be found guilty of Aggravated Kidnapping, you must unanimously agree upon the same underlying act.”
This instruction was consistent with the aggravated kidnapping statute (K.S.A. 21-3421), which defines that crime as kidnapping (K.S.A. 21-3420) “when bodily harm is inflicted upon the person kidnapped.” Kidnapping is defined as “taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person” for one or more separately listed reasons. K.S.A. 21-3420. These reasons are listed in four separate subsections classified as K.S.A. 21-3420(a) through (d). Only subsection (c) relating to the intent “to inflict bodily injury or to terrorize the victim or another,” K.S.A. 21-3420(c), was instructed on the present case. No other subsection was referenced in the instructions or relevant to the facts of this case.
Clary notes there was no evidence he intended to inflict bodily injury upon or to terrorize “another.” The State concedes the point, claiming it “never argued or intended to argue that [Clary] inflicted bodily injury or terrorized anyone but the victim in this case,” i.e., E.H. So if the reference to “another” in the jury instructions established an alternative means, we must reverse for insufficient evidence. See Wright, 290 Kan. at 204-06. Our review is unlimited. See State v. Stevens, 285 Kan. 307, 314, 172 P.3d 570 (2007); State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005).
We do not believe the reference to “another” established an alternative means. Even if Clary had intended to harm another, the means were the same — by inflicting bodily injury or terror. So including “another” in the instruction did not create more than one way to commit aggravated kidnapping.
If Clary were correct, E.H.’s status as victim would also be away to commit aggravated kidnapping. But E.H. was not die means of the crime, she was its target. To hold otherwise would change the ordinary meaning of “means” and “way.”
We find support for our holding in Washington’s alternative means law, which our Supreme Court cited in Timley and also more recently in State v. Becker, 290 Kan. 842, 854-55, 235 P.3d 424 (2010). In State v. Peterson, 168 Wash. 2d 763, 768, 230 P.3d 588 (2010), a defendant failed to register as a sex offender under a statute which “sets forth various time limits for registration, depending on the offender’s residential status.” The defendant argued “the various deadlines and entities with which ah offender must register represent alternative means of committing the crime.” 168 Wash. 2d at 769. The Supreme Court of Washington thought this “too simplistic a depiction of an alternative means crime,” and it illustrated the point by comparison with theft:
“The alternative means available to accomplish theft describe distinct acts that amount to the same crime. That is, one can accomplish theft by wrongfully exerting control over someone’s property or by deceiving someone to give up their property. In each alternative, tire offender takes something that does not belong to him, but his conduct varies significantly. In contrast, the failure to register statute contemplates a single act that amounts to failure to register: the offender moves without alerting the appropriate authority. His conduct is the same — he either moves without notice or he does not. The fact that different deadlines may apply, depending on die offender’s residential status, does not change the nature of the criminal act: moving without registering.” 168 Wash. 2d at 770.
Here as well, the instruction’s reference to “another” did not describe distinct acts. Clary’s conduct was the same whether his intended target was E.H. or another. “The mere use of a disjunctive in a statute does not an alternative means crime make.” 168 Wash. 2d at 770.
Thus the inclusion of “another” in the jury instruction was surplusage. Given the record before us, we are confident the jury was not confused. Since Clary does not challenge the evidence showing his intent to inflict bodily injury upon or to terrorize E.H., his conviction was supported by sufficient substantial competent evidence. See State v. McCaslin, 291 Kan. 697, 710-11, 245 P.3d 1030 (2011).
We are not persuaded by the dissent’s citations to State v. Turbeville, 235 Kan. 993, 686 P.2d 138 (1984), State v. Crane, 260 Kan. 208, 918 P.2d 1256 (1996), and State v. Johnson, 27 Kan. App. 2d 921, 11 P.3d 67, rev. denied 270 Kan. 901 (2000). As acknowledged by the dissent, Turbeville was not an alternative means case. Moreover, unlike the present case which only dealt with one statutory subsection — K.S.A. 21-3420(c), Turbeville concerned a jury instruction “taken from K.S.A. 21-3420(b) and (c) which define separate elements of kidnapping.” 235 Kan. at 997. We acknowledge that alternative means may be implicated in a case where the jury is instructed on two or more separate subsections of K.S.A. 21-3420. But that is not the situation here, where only one subsection was at issue.
Crane is an alternative means case, wherein the defendant “was charged under subsection (b) or, in the alternative, subsection (c)” of K.S.A. 21-3420. 260 Kan. at 230. Once again, in the present case we are dealing with only one, not two or more alternative subsections of the kidnapping statute. We reiterate that where alternate subsections of K.S.A. 21-3420 are instructed on, alternative means may be present, but that is not the situation here.
Finally, Johnson was an alternative means case which addressed the question: In the light of the overwhelming evidence of kidnapping by means of threat, was it harmless error for the court to include deception as an alternate means of kidnapping in the jury instructions? 27 Kan. App. 2d at 925-26. At the outset, none of the subsections of K.S.A. 21-3420 were at issue, and the opinion does not discuss which subsections of K.S.A. 21-3420 were stated in the jury instructions. Moreover, the Johnson court employed a harmless error analysis where one means was “supported by overwhelming evidence” and the other means had “little or no evidence.” 27 Kan. App. 2d at 925-26. Contrary to the dissent’s assertion, our reasoning is not similar to Johnson (which was effectively overruled by Wright, 290 Kan. at 207), because we believe there was no error- — harmless or reversible — in the mere mention of “another” in the jury instruction. Quite simply, the word “another” was surplusage; it did not create an alternative means of committing kidnapping.
Next Clary argues the trial court erred by denying his motion for a mistrial. Specifically, Clary maintains that witness testimony from E.H.’s mother violated his constitutional right to a fair trial. The relevant portion of the testimony reads as follows:
“Q. [THE STATE]: Okay. After [E.H.] told you [that she was raped], what did you do?
“A. [WITNESS]: I said [E.H.], you have to go to the hospital.
“Q: Did she want to go to the hospital?
“A: At first she was scared.
“Q: Why was she scared to go to the hospital?
“A: She was scared because I told her I said tire police will be notified, you know, and she says mom, he will come after me. I said it doesn’t matter, [E.H.], I said I’m here, you can stay here. . . . [S]he finally agreed to go.
“Q: Okay. How did you get her convinced to go?
“A: I told her I said if you — -I said if you don’t do it, he can do it to somebody else, [E.H.], and it could be even worse. I said you’ve got—
“[DEFENSE COUNSEL]: I’m going to object, Judge, this is not relevant.
“THE COURT: Sustained.
“[DEFENSE COUNSEL]: I need a conference.”
At the bench conference, defense counsel argued that Clary was entitled to a mistrial because the witness’ statement — that Clary would rape someone else unless E.H. went to the hospital — prejudiced the jury. Even though the trial court stated that it was “concerned with the witness’ testimony,” the judge denied defense counsel’s request for a mistrial and stated:
“I am concerned with this witness’ last statement that she told the victim if she didn’t go to the hospital, that he might do it to someone else even worse.
“Now, that was not — that was somewhat— that was not a response to a question that [the State] asked. The witness volunteered that information; however, I do recognize that that testimony is problematic. If you want me to — . . . .
“If you want me to, [I will] instruct the jury to disregard that comment made by the witness.”
Defense counsel agreed that the trial court should instruct the jury to disregard the witness’ comment. Therefore, the judge stated, “All right ladies and gentlemen, please disregard the witness’ last answer. It shall not enter into your deliberations in any way, shape or form.”
Clary asserts on appeal that “this type of inflammatoiy and damaging testimony cannot be undone, requiring the court to declare a mistrial in order to protect [his] right to a fair trial.” In contrast, the State contends that Clary has failed to meet his burden of showing that the witness’ testimony was so prejudicial as to be incurable.
On appeal, a trial court’s decision denying a motion for mistrial is reviewed under an abuse of discretion standard. Judicial discretion is abused if the judicial decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). In evaluating a motion for mistrial, the trial court must use a two-step analysis. First, the court must decide if there is some fundamental failure of the proceeding. Second, if a failure has occurred, the trial court must then assess whether it is possible to continue the trial without an injustice; in other words, the trial court must decide if the damaging effect of the prejudicial conduct can be removed or mitigated by an admonition or instruction to the jury. 292 Kan. at 550.
“To determine whether an error makes it impossible to proceed with the trial without injustice, a trial court must assess whether the fundamental failure affected a party’s substantial rights, which means it will or did affect the outcome of the trial in light of the entire record.” 292 Kan. at 569. If the fundamental failure does infringe upon a right guaranteed by the United States Constitution, the trial court should apply the constitutional harmless error analysis defined in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 87 S. Ct. 1283 (1967). Therefore, the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not, or did not, affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict. Ward, 292 Kan. at 569.
Regardless of whether the error is constitutional, one factor to be considered is whether any damage caused by the error can be or was removed or mitigated by admonition, instruction, or other curative action. 292 Kan. at 569-70. An appellate court reviewing the second step for an injustice will review the entire record and use the same analysis, applying Chapman when the nature of the right allegedly affected is constitutional in nature. Ward, 292 Kan. at 570.
Applying this two-step test, we must first determine whether the trial court erred by ruling that the testimony of E.H.’s mother was not a fundamental failure in the trial. Again, the trial court will have abused its discretion if we determine the trial court’s ruling was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. See State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010).
Clary’s argument implies that there was a fundamental failure in his trial and the trial court’s determination was based on an error of law that failed to recognize an infringement on his presumption of innocence and right to a fair trial, which is a fundamental con stitutional right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. See Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126, reh. denied 426 U.S. 954 (1976) (quoting “[t]he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.”)- “The presumption of innocence is founded on the principle that ‘one accused of a crime is entitled to have guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.’ [Citations omitted.]” Ward, 292 Kan. at 570-71.
In this case, the trial court did not abuse its discretion by ruling that the testimony of E.H.’s mother did not constitute a fundamental failure in the trial. The court listened to defense counsel’s argument concerning the witness’ testimony and questioned the State about the witness’ testimony. The State declared that E.H.’s mother had given a different answer in the past when asked how she convinced E.H. to go to the hospital. The State informed the court that it was unaware that E.H.’s mother would answer in the way that she did.
Even though the trial court sustained the defense’s objection and stated that “how [E.H.’s mother] convinced [E.H.] to go to the hospital [was] absolutely irrelevant,” the court did not feel the witness’ testimony required the granting of a mistrial. The court’s actions were not arbitrary, fanciful, or unreasonable, nor were they based on an error of law or fact. Moreover, the trial judge sustained the defense’s objection and agreed to give an admonition to the jury to disregard the witness’ testimony. Because one factor to be considered by us is — whether any damage caused by the error can be or was removed or mitigated by admonition, instruction, or other curative action — the trial court’s admonition to the juiy further supports a ruling that there was no fundamental failure of the proceeding. See Ward, 292 Kan. at 569-70.
We must also determine whether the error was harmless. “Again, under this standard, the error may be declared harmless where the State, as the party benefitting from the error, proves beyond a reasonable doubt that the error complained of did not affect substantial rights, meaning there is not a reasonable possibility that the error contributed to the verdict obtained.” 292 Kan. at 578.
Here, the State has met its burden of proof beyond a reasonable doubt that E.H.’s mother’s testimony did not affect the outcome of the trial. In this case, E.H. gave extensive detailed testimony at trial. Moreover, her testimony was corroborated by other witnesses at trial. Even though her description of events, as relayed to the other witnesses was not identical, the multiple-day trial supports the conclusion that E.H.’s mother’s testimony did not affect the outcome. The record on appeal contains hundreds of pages of witness testimony. Here, the strength of the evidence against Clary weighs against a finding of prejudice. Consequently, we find that E.H.’s mother’s testimony did not affect the outcome of the trial.
Clary finally maintains that the trial court erred by denying his lesser included offense jury instruction request. In particülar, he argues that the trial court should have granted his request for lesser included instructions on kidnapping and criminal restraint for his aggravated kidnapping charge. On the other hand, the State asserts that Clary was not entitled to lesser included instructions because Clary failed to present an alternative theory to the charge. The State declares: “[Clary] provided no alterative theories to the incident other than it did not occur. The analysis under the facts of this case is simple; either the jury believes that this defendant committed the acts or they acquit him. This leaves no room for lesser included offenses.”
“When a defendant has requested a lesser included instruction at trial, the standard of review for failing to so instruct is whether the evidence, when viewed in the light most favorable to the defendant, supported the instruction. The instruction need not have been given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense.” State v. Jones, 279 Kan. 395, Syl. ¶ 1, 109 P.3d 1158 (2005). Whether a crime is a lesser included offense of another is a question of law over which this court has unlimited review. State v. Gallegos, 286 Kan. 869, 873, 190 P.3d 226 (2008).
A trial court shall instruct the jury on lesser included offenses where there is some evidence that would reasonably justify a conviction of the lesser included offense. K.S.A. 22-3414(3); See State v. Kirkpatrick, 286 Kan. 329, 334, 184 P.3d 247 (2008). This duty to instruct applies even if the evidence is weak, inconclusive, and consists solely of the defendant’s testimony. 286 Kan. at 334; see State v. Berry, 292 Kan. 493, Syl. ¶¶ 2-6, 254 P.3d 1276 (2011) (overruling precedent and utilizing K.S.A. 22-3414(3) to analyze lesser included offense instructions in felony murder cases).
Here, the evidence would not have permitted a rational fact-finder to find Clary guilty beyond a reasonable doubt of the lesser included offenses, i.e., kidnapping and criminal restraint. One of the crimes Clary was charged with in this case was aggravated kidnapping. Clary asserts that “[k]idnapping and criminal restraint are lesser included offenses of aggravated kidnapping.” Clary’s assertion is correct. See State v. Simmons, 282 Kan. 728, 742, 148 P.3d 525 (2006) (kidnapping and criminal restraint are lesser included offenses of aggravated kidnapping). But Clary’s argument that the trial court should have instructed on kidnapping and criminal restraint because the jury could have convicted him of these lesser crimes based on the evidence is misplaced. To prove that Clary committed aggravated kidnapping, the State’s burden was to show that he confined E.H., accomplished by force or threat, with the intent to hold her to facilitate the commission of any crime — e.g., rape — and that Clary inflicted bodily harm upon E.H.. See K.S.A. 21-3420; K.S.A. 21-3421.
There was overwhelming evidence to show that Clary had caused bodily harm to E.H. Indeed, E.H., her mother, the examining nurse, and multiple law enforcement officers all testified that E.H. had suffered bodily injury consisting of bruises, scratches, and abrasions. Moreover, our Supreme Court has held that forcible rape itself constitutes bodily harm. State v. Brown, 181 Kan. 375, 389, 312 P.2d 832 (1957).
On appeal, Clary does not dispute that E.H. suffered bodily harm. He merely argues there was evidence to support the lesser included offenses. Clary’s defense theory, however, was that he did not commit the crimes. During the jury instruction conference, Clary specifically noted that E.H.’s injuries could have come from her previous altercation with her ex-husband and the jury could have believed that Clary had not raped E.H. Given the evidence, the jury had the opportunity either to believe Clary and acquit or to believe the incriminating evidence and find Clary guilty of the aggravated crimes.
The trial judge reached a similar conclusion:
“THE COURT: Well, but should the jury decide to believe, as you indicate, any number of tilings, then they could acquit on a given charge and convict on a different charge. In fact, we tell them that in the juiy instruction that tells them each count is to be considered separately.
“[DEFENSE COUNSEL]: Sure.
“THE COURT: I didn’t really hear anything that would — from an evidentiaiy perspective that would tell me that a lesser included is appropriate. It seems like it — they would believe it happened or it didn’t. There has not been a — an alternative presented to the jmy for them to hang their hat on with regard to any lesser included.”
The trial court’s reasoning was correct.
The evidence at trial does not support the argument that the lesser included offense instructions should have been given. Lesser included offense instructions were not warranted because the jury could not have reasonably convicted Clary of the lesser offenses. Consequently, we find the trial court did not err by refusing to give the instructions for kidnapping and criminal restraint.
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Green, J.:
Kelly Giles (Kelly), a general partner in a family farming partnership, filed suit against the partnership and his partners, arguing that he had not been provided access to partnership books and records. The remaining members of the partnership then filed a counterclaim requesting that Kelly be dissociated from the partnership. The trial court held that Kelly was not denied access to the partnership books and records. Kelly does not appeal from this decision. Moreover, die trial court held that Kelly should be dissociated from the partnership. Kelly, however, contends that the trial court’s ruling regarding his dissociation from the partnership was improper. We disagree. Accordingly, we affirm.
The dispute in this case centers on a family owned and operated limited partnership, Giles Land Company, L.P. (partnership). On one side is the plaintiff, Kelly, the second youngest of seven children in the Giles family. On the other side are the defendants: the partnership; Norman Lee Giles and Dolores Giles, the mother and father of the seven children involved; and Kelly’s six siblings: Norman Roger Giles (Roger), Lorie Giles Horacek, Trudy Giles Giard, Audry Giles Gates, Jody Giles Peintner, and Julie Giles Cox.
Kelly appeals from the trial court’s judgment granting the counterclaim filed by the defendants, which included Norman and Dolores Giles along with their six other children, seeking the dissociation of Kelly from the partnership, under K.S.A. 56a-601. The trial court also denied Kelly’s claim that the defendants had failed to provide him full access to the partnership records, but Kelly does not appeal that judgment.
The record reveals the following facts. The partnership was formed in the mid-1990’s. One-half of the assets in the partnership came from a trust held for the benefit of the children of Norman and Dolores, and the other half of the assets came from Norman. Over the years, Norman and Dolores transferred interests in the partnership to their children. The ownership in the partnership is as follows:
General Partnership Interest Limited Partnership Interest
Norman Lee Giles 4.634500 03.3357145
Dolores N. Giles 4.634500 03.3357145
Trudy Giles Giard 12.857143
Norman Roger Giles .243667 12.857143
Audry Giles Gates 12.857143
Jody Giles Peintner 12.857143
Lorie Giles Horacek .243666 12.857143
General Limited Partnership Interest Partnership Interest
Kelly K. Giles .243667 06.185714
Julie Giles Cox 12.857143
Totals: 10.00% 90.00%
The general partnership interests held by Roger, Lorie, and Kelly were gifted to them by their parents.
The partnership owns both ranch land and farmland. This partnership is not the only Giles family business; there is also Giles Ranch Company and H.G. Land and Cattle Company. In 1999, Kelly was a partner in the Giles Ranch Company, but he became so overwhelmed with the debt he had incurred in the operations of the ranch company that he insisted that he be bought out of the ranch company and relieved of all debt. The other partners managed to buy out Kelly’s interest in the ranch company. At the time of die lawsuit, Kelly only had an ownership interest in the partnership at issue, i.e., Giles Land Company.
On March 26, 2007, the partnership held a meeting to discuss converting the partnership into a limited liability company. Kelly was unable to attend the meeting, but he later received a letter explaining the family’s interest in converting the partnership to a limited liability company. Kelly did not sign the articles of organization for the proposed conversion and instead had his attorney request production of all of the partnership’s books and records for his review. Kelly was not satisfied with the records that the partnership had provided, so he filed suit asking the court to force the partnership to turn over all of the documents he was requesting. In response, the defendants filed an answer and a counterclaim seeking to dissociate Kelly from the partnership.
After a 2-day trial, the trial court determined that the partnership had properly complied with the document requests. The trial court also held that Kelly should be dissociated from the partnership under K.S.A. 56a-601(e)(3) or, in the alternative, K.S.A. 56a-601(e)(1). The trial court found that due to Kelly’s threats and the total distrust between Kelly and his family, it was not practicable to carry on the business of the partnership so long as Kelly was a partner.
Did the Trial Court Err in Finding that Kelly Should Be Dissociated from the Partnership?
On appeal, Kelly argues that the trial court erred in finding that he should be dissociated from the partnership under K.S.A. 56a-601(e)(3) or, alternatively, K.S.A. 56a-601(e)(l). Kelly contends that there was insufficient evidence to support dissociation under K.S.A. 56a-601(e).
Kelly’s argument requires this court to interpret the language of K.S.A. 56a-601(e). The interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Additionally, Kelly’s argument requires our review of the trial court’s findings of fact and conclusions of law contained within its memorandum decision.
“The function of an appellate court is to determine whether the court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). An appellate court’s review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004).” Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).
K.S.A. 56a-601 states the following:
"A partner is dissociated from a partnership upon the occurrence of any of the following events:
“(e) on application by the partnership or another partner, the partner’s expulsion by judicial determination because:
(1) The partner engaged in wrongful conduct that adversely and materially affected the partnership business;
(3) the partner engaged in conduct relating to the partnership business which makes it not reasonably practicable to carry on the business in partnership with the partner.”
The trial court relied primarily on K.S.A. 56a-601(e)(3) to dissociate Kelly; therefore, the record must demonstrate that (1) Kelly engaged in conduct relating to the partnership business and (2) such conduct makes it not reasonably practicable to cany on the business in partnership with Kelly. See K.S.A. 56a-601(e)(3).
Kansas’ partnership statutes were dramatically changed on the enactment of the Kansas Revised Uniform Partnership Act in 1998, K.S.A. 56a-101 et seq. These changes brought about the concept of dissociation, which previously did not formally exist in our law. Thus, it is not surprising that our research has revealed no Kansas cases and very few cases from other jurisdictions that have discussed and applied the dissociation provisions of the Uniform Partnership Act 1997 (UPA). The statutory dissociation language in K.S.A. 56a-601(e) is veiy similar to the dissolution provisions set out in K.S.A. 56a-801(e). The comment to § 601 of the UPA, which is the source of K.S.A. 56a-601(e), confirms that the dissociation provisions were based on the preexisting grounds for dissolution under the UPA. See UPA § 601(5), comment. Consequently, case-law addressing the analogous UPA dissolution provisions is probative in analyzing the defendants’ dissociation claim.
Kelly first contends that there is no evidence that he engaged in conduct relating to the partnership business. Kelly argues that the trial court erroneously relied on evidence that he had threatened his family members and that the familial relationship was broken. Kelly maintains that this evidence is not related to the partnership business and, therefore, it was not relevant.
Before we address Kelly’s argument as to the trial court’s use of this evidence in concluding that dissociation was proper, it is helpful to our review to set out some of the trial court’s findings. Before the trial court addressed the question of whether Kelly should be dissociated from the partnership, it made numerous factual findings relating to certain conflicts between Kelly and the rest of his family members.
First, the trial court found that Kelly did not trust the other general partners and that he did not trust some of his sisters who are limited partners in the partnership.- The trial court also found that the general partners as well as all of the other partners did not trust Kelly.
The trial court further found that the relationship between Kelly and the other family members was irreparably broken. In reaching that conclusion, the trial court focused on a meeting between the partners in 2006. Kelly turned to each of the general partners and said diat they would each die, in turn, and that he would be the last man standing and that he would then get to control the partnership. Although Kelly testified that this was not a threat and that he was simply trying to explain the right of survivorship, the trial court believed the testimony of the rest of the family that it was taken as a threat. The trial court also relied on evidence that Kelly had said that “paybacks are hell” and that he intended to get even with his partners. The trial court also found this to be a threat. Another fact that die trial court relied on in finding that the family relationship was irreparably broken was that it was impossible for any of the family members to communicate with Kelly regarding the partnership. Each family member testified that he or she believed that it was in the best interest of the partnership to not have Kelly remain a partner.
In finding that Kelly should no longer be a partner, the trial court stated:
“This court finds that the testimony of the counterclaimants regarding the plans of Kelly Giles to take over Giles Land Company, L.P., [the partnership], predicting the deaths of the other General Partners, the statement of Kelly Giles that ‘paybacks are hell’ and that he would get even, is credible. The Court finds that Kelly Giles’ version of events as something close to the magnanimous savior of the family lacked credibility. The Court finds that Kelly Giles was not amenable to land acquisitions or working with the family .... The Court further finds that given the lack of trust between Kelly Giles and his siblings who are General Partners, the partnership cannot operate in a meaningful fashion, and certainly cannot operate as intended, as a family business where there is cooperation, as long as Kelly Giles is a partner in [the partnership].”
The trial court then turned to the issue of whether the standard for dissociation had been met. The trial court relied on K.S.A. 56a-601(e)(3), which, as previously noted, permits the court to grant dissociation if “the partner engaged in conduct relating to the partnership business which makes it not reasonably practicable to carry on the business in partnership with the partner.” In relying on this subsection, the trial court correctly stated that there is no Kansas caselaw that direcdy addresses this subsection of the Kansas Revised Uniform Partnership Act. Thus, the trial court looked for guidance from other jurisdictions to determine how the dissociation provisions should be applied.
The trial court relied on Warnick v. Warnick, 76 P.3d 316 (Wyoming 2003), to support its conclusion that K.S.A. 56a-601(e)(3) could be used in this case to dissociate Kelly. Similar to our case, in Warnick a dispute arose around a family ranch business and the Wyoming Supreme Court found that dissociation was appropriate. 76 P.3d at 322. To support its conclusion that dissociation was necessary, the court pointed to tire fact that there had been heated disputes between the plaintiff and the defendants, including allegations of physical disputes. There was also evidence that the plaintiff had paid personal expenses out of the partnership checking account. The Warnick court applied the Wyoming equivalent of K.S.A. 56a-601(e)(3) to find that dissociation was proper. 76 P.3d at 322. In our case, the trial court relied on Warnick to show that K.S.A. 56a-601(e)(3) can be used for dissociation in appropriate circumstances.
Additionally, to support its argument that the trial court correctly applied K.S.A. 56a-601(e)(3), the defendants direct this court to consider Brennan v. Brennan Associates, 293 Conn. 60, 977 A.2d 107 (2009). In Brennan, the Connecticut Supreme Court applied the Connecticut equivalent of K.S.A. 56a-601(e)(3) to find that dissociation was appropriate. In Brennan, the dissociated partner appealed, arguing that the alleged misconduct used to dissociate him was not directly related to the partnership and, therefore, it was not relevant. The court noted that the term “relating to” has generally been given a broad meaning. 293 Conn. at 79-80. The Brennan court applied a totality of the circumstances approach in finding that the alleged misconduct was related to the partnership. The court explained that a 17-year-old conviction involving an unrelated enterprise likely would not meet the broad definition of related to, but when that evidence is combined with the other issues between the partners, the court found that dissociation was proper. 293 Conn. at 79-80. The Brennan court held that “an irreparable deterioration of a relationship between partners is a valid basis to order dissolution, and, therefore, is a valid basis for the alternative remedy of dissociation.” 293 Conn. at 81.
Here, like in Brennan, Kelly argues that tire evidence that the trial court relied on was not related to tire partnership business. Reviewing the record as a whole, it is clear that the trial court found the evidence to be related to the partnership business because this was a family partnership and all of the alleged disputes were between family members in that partnership. It is also telling that both of the parents and all of the other siblings joined in this lawsuit seeking Kelly’s dissociation. Clearly, the relationship between Kelly and his family was broken, and although Kelly attempted to argue that their personal issues were not interfering with the partnership, the trial court did not find his testimony to be credible.
In light of the animosity that Kelly harbors toward his partners and his distrust of them (which distrust is mutual), it is clear that Kelly can no longer do business with his partners and vice-versa. Indeed, the partnership has reached an impasse regarding important business because of a lack of communication between Kelly and his partners. The evidence indicated that most communications with Kelly had to be conducted through his attorney. Moreover, Kelly’s statement predicting the deaths of his general partners, his statement that “paybacks are hell,” and his statement that he would get even showed a naked ambition on his part to control the partnership, contrary to the interests of the other partners.
Although Kelly contended that some of these statements were wholly unrelated to the partnership in question, the trial court determined that Kelly’s version of the events lacked credibility. Thus, tire appropriate remedy under these circumstances is the dissociation of Kelly under K.S.A. 56a-601(e)(3). See Covalt v. High, 100 N.M. 700, 704, 675 P.2d 999 (Ct. App. 1983) (dissolution appropriate where partners reached an impasse over whether to increase rent on partnership property, although breach of fiduciary duty not proven); Nupetco Associates v. Jenkins, 669 P.2d 877, 883 (Utah 1983) (affirming trial court’s dissolution of partnership where trial court found that partners could not agree on “method of, timing and of and means” of managing partnership affairs and partners could no longer work together amid atmosphere of dissension, although neither party proved a breach of the partnership agreement).
Alternative Theory for Dissociation
The trial court also found that there was enough evidence to dissociate Kelly under K.S.A. 56a-601(e)(l). This alternative ground also supports the trial court’s decision. Again, there is no Kansas caselaw that applies this section of the Kansas Revised Uniform Partnership Act to provide us guidance on this issue.
Under this alternative theory of dissociation, the record must demonstrate (1) that Kelly engaged in wrongful conduct and (2) that the wrongful conduct adversely and materially affected the partnership business. See K.S.A. 56a-601(e)(l).
Kelly first argues that he did not engage in wrongful conduct towards his parents, Norman and Dolores. Kelly maintains that the evidence the trial court relied on was not supported by the record and also that it was not relevant. Kelly contends that because nothing in the record supports the trial court’s finding that he engaged in wrongful conduct, he should not be dissociated under this section. Additionally, Kelly argues that even if his conduct was wrongful, it did not adversely or materially affect the partnership business. Kelly contends the record shows that the partnership continued to operate as it always had and that die partners failed to show how his conduct materially or adversely affected the business of the partnership.
In applying the alternative theory of dissociation, the trial court held the following: “In addition, Kelly Giles’ conduct toward the General Partners who own the largest General Partnership interests by far, his parents, would also constitute wrongful conduct that materially affected the partnership business under 56a-601(e)(l), and the Court so finds.”
As stated earlier, the Brennan court held that “an irreparable deterioration of a relationship between partners is a valid basis to order dissolution, and, therefore, is a valid basis for the alternative remedy of dissociation.” 293 Conn. at 81. To support this conclusion, the Brennan court noted that one of the grounds for dissolution was identical to one of the grounds for dissociation, namely, that another partner has engaged in conduct relating to the partnership which makes it not reasonably practicable to carry on the business in partnership with that partner. The court further held that the grounds for dissociation do not need to be construed more strictly than the grounds for dissolution. 293 Conn. at 82-83. The Brennan court then cited numerous dissolution cases that had similar issues as our case:
“See Bertolla v. Bill, 774 So. 2d 497, 503 (Ala. 1999) (Citing the following evidence when concluding that the trial court properly ordered dissolution on the ground that ‘it was “not reasonably practicable” for them to remain in partnership Every witness who was asked whether [the partners] could continue in partnership with each other answered that they could not. It is well settled that partners who cannot interact with each other should not have to remain bound together in partnership.’...).. .; Ferick v. Barry, 320 Mass. 217, 222, 68 N.E.2d 690 (1946) (Dissolution was proper on the ground that a partner ‘ “conducts himself in matters relating to the partnership business [and] drat it is not reasonably practicable to carry on the business in partnership with him” ’ when: ‘The conduct of [the plaintiff partner] had brought about a situation in which the business could no longer be carried on joindy in the manner contemplated by the articles of co-partnership. The odier partners were not required to submit to [the plaintiff s] domination or to continue in an atmosphere of non-cooperation, suspicion, and distrust, even though [the plaintiff] was not actually dishonest, and even though substantial profits were being made. ...’).. .; see also Cobin v. Rice, 823 F. Supp. 1419, 1426 (N.D. Ind. 1993) (Finding that the partnership should be dissolved on die general equitable ground when ‘[t]he plaintiffs have presented sufficient evidence of ill-will, dissension, and antagonism between the partners to prove that die partners are unable to carry on the [partnership business to their mutual advantage. . . . Accordingly, as the [p]artnership business requires cooperation and harmony between the partners, which is clearly lacking, equitable dissolution of the [p]artnership is appropriate.’) . . . .” Brennan, 293 Conn. at 81 n.14.
Like in the previously cited case of Ferrick v. Barry, 320 Mass. 217, 68 N.E.2d 690 (1946), Kelly had created a situation where the partnership could no longer carry on its business to the mutual advantage of the other partners. For example, Lorie testified that Kelly would berate and belittle Norman in an attempt to make Norman do what Kelly wanted. There was also testimony given by John Horacek, Lorie’s husband, that in a phone conversation between Kelly and Norman, Kelly yelled and cursed at his father and his father was in tears by the end of the conversation. Norman further testified that it would be better for everyone if Kelly were no longer in the partnership because it was clear that Kelly did not agree with what the other partners were wanting to do with the future of the partnership. Norman testified: “ ‘Cause I think the route we’re on now, Judge, if we continue on this, and we don’t— we’re just at a standstill on what we plan to do.” There was also evidence that Kelly had frustrated the partnership’s opportunities to purchase more land. This evidence brings us back to the Ferrick case, where the court held that “[t]he other partners were not required to submit to [the plaintiff s] domination or to continue in an atmosphere of non-cooperation, suspicion, and distrust, even though [the plaintiff] was not actually dishonest, and even though substantial profits were being made.” 320 Mass, at 222. That is the situation in this case. Kelly is clearly not cooperating with the other partners and the distrust between Kelly and his partners runs both ways. Thus, even though there is no evidence that Kelly has been dishonest, and even though the partnership has continued to be successful, this does not mean that the other partners should be forced to remain in partnership with an uncooperative and distrustful partner.
Because this is a family partnership, the evidence of Kelly making threats or berating his parents to get them to give him what he wants qualifies as wrongful conduct. None of the partners were able to interact or communicate with Kelly. Additionally, Norman clearly testified that the partnership was at a standstill because of tire disputes between Kelly and the rest of the partners. This is evidence that Kelly was materially or adversely affecting the partnership. Moreover, this evidence is clearly enough to support dissolution based on the caselaw listed earlier; therefore, it is also sufficient for dissociation. Based on this evidence, we determine that the trial court properly held that Kelly could also be dissociated under K.S.A. 56a-601(e)(l).
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Standridge, J.:
Jimmy Wayne Miles was civilly committed to the custody of the Secretaiy of the Kansas Department of Social and Rehabilitation Services (SRS) in December 2001. Since that time, he has been a resident in the Sexual Predator Treatment Program (SPTP) at Larned State Security Hospital. In this appeal, Miles challenges the district court’s decision to deny his petition for discharge or transitional release from confinement. Because we find Miles presented sufficient evidence to establish probable cause to believe he is qualified for discharge or transitional relief, we remand to the district court for a hearing pursuant to K.S.A. 2011 Supp. 59-29a08(c)(l).
Facts
In 1989, Miles pled guilty to charges of aggravated sexual battery against his 9-year-old daughter. The court imposed an underlying term of prison but granted probation, during which Miles sought treatment from a mental health center. In 1996, a jury convicted Miles of aggravated indecent liberties in connection with his 6-year-old great-niece. The court sentenced Miles to a term of prison.
In January 2000, the Kansas Department of Corrections (KDOC) had Miles evaluated to consider release options and civil commitment under the Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq. Miles ultimately was paroled in May 2001 with conditions that required him to attend a sex offender treatment program. The court, however, revoked his parole the next month upon a finding that Miles violated the conditions thereof by failing to take sufficient responsibility for either of his two convictions, failing to adequately progress in treatment, and failing to adequately journal.
Upon his return to prison, the KDOC ordered Miles be evaluated a second time to consider release options and civil commitment under the SVPA. In a report dated August 27, 2001, the evaluator indicated that Miles met tire criteria for “Pedophilia, Sexually Attracted to Females, Nonexclusive Type” and “Personality Disorder, NOS.” The results of the Static-99 test (an actuarial test used to determine the chances of a person committing a new sexual offense once he or she is released from prison) administered to Miles at the time, however, reflected he had a “low” risk of reoffending as “many of the usual risk factors were absent in his case.”
On October 3,2001, the State filed a petition alleging Miles may meet the criteria of a sexually violent predator and, as such, requested Miles be transferred to an appropriate facility for an evaluation of his mental condition. The court appointed counsel for Miles and granted the request for an evaluation, which was conducted at Lamed State Hospital. On November 12, 2001, the evaluating clinicians at Larned presented a report and opinion that Miles met the definition of a sexually violent predator as defined by the SVPA. In December 2001, Miles waived his right to a jury trial and stipulated to the fact that there was sufficient evidence from which a jury could find that he met the statutory criteria of a sexually violent predator. As a result of this stipulation, the court involuntarily committed Miles to SRS custody pursuant to K.S.A. 2011 Supp. 59-29a07(a) until such time that his mental abnormality improved to a point where it would be safe to release him.
As required by K.S.A. 2011 Supp. 59-29a08(a), SRS thereafter conducted an annual evaluation of Miles’ mental condition and submitted annual reports regarding his status. These reports were completed by SRS psychologists having regular contact with Miles, as well as Miles’ primary therapist. Each of the eight reports submitted by SRS from 2002 through 2009 expressed the opinion that Miles remained a sexually violent predator and recommended that Miles remain in SRS custody.
In May 2006, Miles requested and received an independent examination from Dr. Robert Barnett on the issue of whether Miles’ mental abnormality had so changed that he was not likely to commit acts of sexual violence if released from the SPTP. Barnett’s report stated, in relevant part:
“[F]rom my perspective as a forensic psychologist who is not involved in his treatment, Mr. Miles appears to be doing relatively well and also appears to be complying with all the requirements of the program. A review of the records also suggests that substance abuse played a major role in his illegal behavior in the past, and that provided he abstains from drugs or alcohol in the future, and participates in outpatient substance abuse treatment, he probably represents little or no risk to the public. Due to this, and the fact that the test findings in this evaluation are relatively benign, I can see no objection to him moving forward in this program with the eventual goal of being released back into the community.”
On June 25, 2007, almost a year after Dr. Barnett conducted his evaluation, the court held a hearing and concluded that, although Miles was making progress in his treatment, the evidence presented did not amount to probable cause to believe that his mental abnormality had so changed that it was safe to place him in transitional release.
In January 2008, Miles filed a pro se petition for discharge or transitional release and requested the district court appoint an expert to examine him and provide testimony in support of his petition. On January 31, 2008, the court summarily denied Miles’ petition and his request to have an expert appointed. On appeal, a panel of this court reversed and remanded to the district court with directions to malee a finding, as required by K.S.A. 59-29a06, regarding whether an independent evaluation was “necessary” under die circumstances. See In re Care & Treatment of Miles, 42 Kan. App. 2d 471, 479-80, 213 P.3d 1077 (2009).
Following remand, the district court ultimately granted the request for an independent assessment and, on March 16, 2010, appointed Dr. Stanley Mintz to evaluate Miles. Mintz met with Miles on May 12, 2010, and prepared a psychological evaluation report. Mintz stated in his report that he believed Miles had made “tremendous progress” during his time at Lamed and that Miles “does not appear to be a violent sexual predator at this time.” Mintz recommended that Miles be considered for advancement to transitional release with a goal of eventual release from the program.
On August 30, 2010, the district court held a hearing on Miles’ petition for discharge or transitional release. After taking the matter under advisement, the court held the evidence presented did not amount to probable cause to believe that Miles’ mental abnormality had so changed that it was safe to place him in transitional release.
Analysis
On appeal, Miles argues the evidence he presented to the court was sufficient to establish probable cause to believe that his mental abnormality had so changed that it was safe to place him in transitional release. To be clear, the relief Miles seeks as a result of his probable cause showing is not immediate transitional release, but a full evidentiary hearing or trial on the issue of whether transitional release is appropriate. In order to put Miles’ request in context, we find it helpful to provide a brief overview of the SVPA civil commitment proceedings relevant to the issue presented.
Relevant Provisions of the SVPA
Each person committed pursuant to the SVPA is entitled to an annual review. K.S.A. 2011 Supp. 59-29a08. As part of that annual review, the confined person is entitled to be examined by an expert in order to render an opinion regarding whether the person should continue to be confined. If, upon review, the district court “determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release, then the court shall set a hearing on the issue.” K.S.A. 2011 Supp. 59-29a08(c)(l). It is the person committed who bears the burden to establish probable cause for this evidentiary hearing. In re Care & Treatment of Sipe, 44 Kan. App. 2d 584, 592, 239 P.3d 871 (2010).
If the court malees a probable cause determination and sets a second hearing, the burden shifts and it is the State that must prove, beyond a reasonable doubt, “that the committed person’s mental abnormality or personality disorder remains such that the person is not safe to be placed in transitional release and if transitionally released is likely to engage in acts of sexual violence.” K.S.A. 2011 Supp. 59-29a08(c)(3). The State may elect to proceed with this evidentiary hearing before the court or before a jury, and the person committed is afforded the same rights to which he or she was entitled during the initial commitment proceeding. K.S.A. 2011 Supp. 59-29a08(c)(3).
Standard of Review
As noted above, it is the person committed who bears the burden of proof to establish probable cause for a second hearing on the issue. In re Care & Treatment of Sipe, 44 Kan. App. 2d at 592. Because the standard of proof is probable cause, the district court must “determine whether there is sufficient evidence to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the committed person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release.” 44 Kan. App. 2d at 592-93. A probable cause determination under the SVPA is comparable to the probable cause determination made at the preliminary hear ing stage of a criminal proceeding; thus, it is appropriate to apply the same de novo standard of review under the SVPA that we apply in the criminal context. 44 Kan. App. 2d at 590-91. This standard of review is particularly appropriate when, as here, the district court’s probable cause determination was based on expert reports and arguments of counsel, placing this court in the same position as the district court to determine whether the evidence is sufficient to establish probable cause. See 44 Kan. App. 2d at 591.
The Evidence
The evidence presented at the hearing consisted of (1) the journal entry of judgment for Miles’ 1996 conviction; (2) precommitment reports from SRS-licensed psychologists diagnosing Miles with pedophilia (females) and a personality disorder (not otherwise specified); (3) a precommitment KDOC multidisciplinary team assessment finding Miles to be a high predatory risk; (4) eight post-commitment yearly reports completed by SRS psychologists and therapists having regular contact with Miles at Larned; and (5) two postcommitment psychological evaluations completed by two different independent licensed psychologists unaffiliated with SRS. Given the fact-intensive nature of our probable cause inquiry, we provide the following chronological summary of the information and opinions set forth in the yearly reports and the independent psychological evaluations.
December 19, 2002, Annual Report: Advanced to Level 2 of inpatient treatment program; good and satisfactory progress; had overcome early resistance to placement in program; sexual fantasies reportedly limited to adult women, typically movie stars.
December 17, 2003, Annual Report: Remained at Level 2 but almost ready to advance to Level 3; completed and presented his autobiography; made noteworthy progress in program, especially given the chronic low back pain he suffered; no sexual urges.
December 17, 2004, Annual Report: Advanced to Phase 3 but reticent to comply with treatment expectations (e.g., declined to participate in annual interview and update).
December 17, 2005, Annual Report: Remains at Phase 3 with progress; attended classes and groups; continued to improve honesty with peers and staff; became more assertive and less negative; developed good abstract thinking skills in social situations and understanding of the treatment process; made remarkable strides in taking responsibility for sexual crimes; sought to advance to Phase 4 but did not meet requirements due to insufficient attendance statistics and underdeveloped relapse prevention plan.
Tune 10, 2006, Evaluation by Dr. Robert Barnett
Procedures: Performed mental status examination; conducted clinical interview; administered psychological tests; reviewed treatment records, including relapse prevention plan.
Diagnostic impression: Alcohol and cannabis dependence, in partial remission due to institutional placement; dysthymic disorder, late onset, mild.
Findings:
• No diagnosis of pedophilia.
• No discrepancies noted between information from Miles during interview and treatment records submitted in conjunction with the evaluation.
• Appeared to be doing relatively well and complying with all program requirements.
• Relapse prevention plan developed in Phase 4 was viable; showed thoughtfulness and utilization of concepts learned in treatment.
• Noted that SRS annual reports did not identify or discuss in any way the nature of Miles’ mental abnormality.
• Miles’ refusal to admit he molested his niece created an “existential dilemma” for Miles. He cannot move forward in the program unless he admitted to the conduct underlying his conviction, but if, in fact, he did not engage in the conduct, the only way Miles could move forward was to lie, which was behavior that also would prevent him from moving forward.
Recommendation: Given the benign results of psychological tests administered to Miles and the fact that substance abuse played a major role in his past illegal behavior, Miles probably represented little or no risk to the public provided he abstained from drugs and alcohol and participated in outpatient substance abuse treatment. “I can see no objection to him moving forward in this program with the eventual goal of being released back into the community.”
December 18, 2006, Annual Report: Advanced to Phase 4 in February; successfully completed sexual behavior polygraph and relapse prevention plan; successfully completed many advanced core classes; difficulty, at times, seeing past behavior as problematic; no sexual urges, which may be due to a medication or physiological problem. “It is possible that during the next year, Mr. Miles will meet with the Transition Panel and be assigned to Phase 5.”
December 18, 2007, Annual Report: Remained in Phase 4 but making progress; passed Advanced Strategies for Motivation class (98%); enrolled in other advanced classes (although attendance below average); completed relapse plan; took MSI II and polygraph; increased group participation; showed respect for peers; expressed himself in genuine manner; employed in vocational training program and got along well with coworkers, clients, and staff; reported no sexual function. Although needed to better maintain medication time lines, positive attitude, and personal hygiene, “Mr. Miles is to be commended for his continued progress in treatment. He appears to have a degree of clarity about what he needs to do to continue progress.”
December 30, 2008, Annual Report: Raised clinical needs assessment scores to 8, which was required for advancement to Phase 5; submitted request to advance to Phase 5, which transition panel denied based — at least in part — on Miles’ decision earlier in the day to throw a container of milk at the trash can due to the limited selection of food available in the cafeteria. Remained in Phase 4 with modest progress; continued to wrestle with negative attitude toward program but had worked very hard on these issues over the last 6 months; had made much fewer negative comments; and had made efforts to be more open to feedback. Miles did not make entries in his sexual fantasy log and reported he rarely had sexual thoughts.
December 10,2009, Annual Report: Minimal progress; medication compliant; polite and cooperative with staff; requested to see transition board which was denied due to lack of required attendance at activity therapy sessions; concerned about current medication regimen and issues related to anger; Miles did not malee entries in his sexual fantasy log (reporting he rarely had sexual thoughts) and declined to take another polygraph until he had been approved to see the transition board; clinical needs assessment scores rounded up to 8 but program prohibited advancement unless the score was achieved without such rounding; took food from cafeteria in violation of program rules; for the most part better at bringing up topics and providing feedback to other group members but resisted negative feedback about him from others, particularly about his work in the program and his diet; declined to participate in annual interview due to pending litigation.
May 12, 2010, Evaluation by Dr. Stanley Mintz
Procedures: Performed mental status examination; conducted clinical interview; administered psychological tests; reviewed treatment records.
Diagnostic impression: Dysthymia, mild; generalized anxiety disorder; alcohol and cannabis abuse, in remission.
Findings:
• Miles was not currently a pedophile.
• Miles was not currently a violent sexual predator.
• Miles did not currently pose a threat to others.
• Miles had successfully internalized pro-social attitudes, values, and behavior patterns since his commitment.
• Miles stated in his clinical interview that he had participated and cooperated with all aspects of his treatment program; had passed polygraph examinations; had completed all sexual offender treatment program material; had completed substance abuse treatment; had good attendance in his classes; got along well with staff and other residents; appreciated the harm he had done to his victims; and expressed remorse and guilt for his past conduct.
Recommendation: Miles should be considered for advancement to the transitional release phase of the program at this time with goal of eventual release from program. Miles could benefit from treatment for help in avoiding a substance abuse relapse and overcoming issues related to depression and anxiety.
Discussion
The sole issue presented in this appeal is whether the evidence presented to the district court, as summarized above, was sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that Miles’ mental abnormality or personality disorder has so changed that he is safe to be placed in transitional release. See K.S.A. 2011 Supp. 59-29a08(c). In order to determine whether Miles’ mental condition has changed, we begin our discussion by looking back to the assessment of Miles’ mental condition at the time he originally was committed.
The evaluation and report submitted to the court by SRS just prior to his commitment concluded that Miles met the diagnostic criteria for (1) pedophilia, sexually attracted to females, nonexclusive type and (2) personality disorder not otherwise specified with antisocial and narcissistic traits. Beyond this summary diagnosis, the report does not provide any criteria for, or information about, Miles’ personality disorder. The report does, however, discuss the pedophilia diagnosis and cites to the Diagnostic and Statistical Manual of Mental Disorders, p. 528 (4th ed. 1995) (DSM-IV), which contains the following criteria for that diagnosis:
A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 years or younger);
B. The fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning;
C. The person is at least age 16 years and at least 5 years older than the child or children in Criterion A.
The precommitment evaluators found the behaviors underlying each of Miles’ two convictions involved sexual activity with a prepubescent child over a period of at least 6 months and that those behaviors significantly impaired Miles’ ability to adequately function; accordingly, the report concluded Miles met the diagnostic criteria for pedophilia.
The precommitment report further concluded that Miles met the statutory definition of a sexually violent predator. A sexually violent predator is defined by the SVPA as “[1] any person who has been convicted of or charged with a sexually violent offense and [2] who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.” K.S.A. 2011 Supp. 59-29a02(a). Although the term “personality disorder” is not defined in the SVPA, the term “mental abnormality” is defined as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” K.S.A. 2011 Supp. 59-29a02(b). With regard to the first prong of the statutory definition, the evaluators considered Miles’ past convictions. With regard to the second prong, it appears from the report that the evaluators considered Miles’ diagnosis of pedophilia in conjunction with the repetitive nature of past improper sexual behavior in order to support their conclusion that Miles bad a condition affecting his emotional or volitional capacity to the extent that it predisposed him to commit sexually violent offenses to such a degree that it posed a menace to the health and safety of others.
Having ascertained the precise nature of Miles’ mental abnormality at the time he originally was committed, we are now ready to determine whether tire evidence presented to the court supported a finding of probable cause to believe that Miles’ mental abnormality had so changed that he was not likely to commit acts of sexual violence if released from the SPTP. In order to meet his burden to show that it had changed, Miles submitted reports from two separate psychologists who, after conducting comprehensive evaluations and reviewing relevant mental health records, both determined that Miles no longer met the diagnostic criteria for pe dophilia as set forth in the DSM-IV. Notably, this pedophilia diagnosis was an essential part of the original finding that Miles had a mental abnormality predisposing him to commit sexually violent offenses; thus, the fact that two different experts independently determined that Miles no longer met the diagnostic criteria for pedophilia was sufficient to create probable cause to believe that Miles’ mental abnormality had changed to the extent that he was not likely to commit acts of sexual violence if released from the SPTP. This is especially true given there is no evidence in the record to contradict these two consistent expert opinions. Although a detailed examination of each annual report submitted from 2002 to 2009 may reflect isolated instances when Miles failed to satisfy the criteria necessary to advance to the next level/phase of the program, none of the reports identify the nature of Miles’ mental abnormality or discuss the extent to which it has or has not changed.
In sum, we find the evidence presented at the hearing was sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that Miles’ mental abnormality has so changed that he is safe to be placed in transitional release. Notably, our probable cause determination does not entitle Miles to transitional release; instead, it merely requires the district court to conduct an evidentiary hearing on the issue of whether transitional release is appropriate. At that hearing, the State again has the burden “to prove beyond a reasonable doubt that the committed person’s mental abnormality or personality disorder remains such that the person is not safe to be placed in transitional release and if transitionally released is likely to engage in acts of sexual violence.” K.S.A. 2011 Supp. 59-29a08(c)(3).
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Hill, J.:
Kevin Ketzel claims the district court lacked jurisdiction to modify a child support order under the Uniform Interstate Family Support Act, K.S.A. 23-9,101 et seq. Under the Act, a Kansas court has continuing, exclusive jurisdiction to modify a child support order if any one of the following is a Kansas resident: the one who pays the support, the one who receives the support, or the child. In this case, in 2008, mother and daughter moved to Hong Kong where mother married the CEO of a corporation where she now works. Later, the child received a Hong Kong identity card, no longer receives Medicaid assistance, and is attending school. Because mother and daughter are no longer Kansas residents as defined by the Act and Ketzel has moved to Missouri, we hold the Kansas court had no authority to modify this child support order. We reverse the district court’s order increasing the child support obligation.
The couple’s daughter was bom in Kansas.
While Cheri Bradish was living in Kansas, she and Kevin Ketzel had a daughter named Alexandra, a girl with special needs born in December 1994. In 1995, the Secretary of Social and Rehabilitation Services filed a parentage action on behalf of Alexandra. As a result of stipulations, the Johnson County District Court declared Ketzel the father of Alexandra and confirmed the existing sole custody to Bradish. The court also ordered Ketzel to pay child support.
Sometime later, Bradish notified Ketzel in a letter that she and Alexandra were going to be moving to Hong Kong. The letter noted that effective September 16, 2008, Bradish and Alexandra would be at an address in Sai Kung, Hong Kong. In October 2008, Alexandra started attending school in Hong Kong. But because of visa issues, Alexandra could not attend school regularly until March 2009. Alexandra had been issued a Hong Kong identity card in February 2009.
In March 2009, Bradish filed a motion to increase child support in the Johnson County District Court. Bradish subsequently submitted to the court a domestic relations affidavit notarized in Hong Kong. It listed her address in Clearwater Bay, Hong Kong. Bradish claimed $2,200 a month in self-employment income and $5,250 a month in total expenses. By this time, Ketzel was residing in Missouri.
Bradish later submitted responses to requests for production of documents and interrogatories. Bradish (1) provided an address in Sai Kung, Hong Kong, as both her residence and mailing address; (2) identified herself as being married to the CEO of a corporation in Shatin, Hong Kong; (3) claimed a 50 percent interest in that corporation commencing May 26, 2008, which also employed her full-time with her wages at approximately $2,200 a month; (4) acknowledged she formerly operated “Cheri Bradish’s Salon” in Kansas as a sole proprietorship for the years 2006 and 2007; and (5) stated that Alexandra stopped receiving Medicaid assistance in September 2008. In response to Ketzefs request for copies of all of her tax returns for the years 2004 through 2008, Bradish responded: “2005 tax return is attached. I have not filed taxes for the other years.”
Did the district court have jurisdiction to increase the order?
On July 13, 2009, a hearing officer increased Ketzefs child support obligation to $2,868 per month and offsetting die $5,000 owed Ketzel under the August 23, 2005, agreement against special needs equipment costs of $6,856, leaving Ketzel owing $1,856 to Bradish. That same day, Ketzel filed a motion for a de novo appeal to the district court. Bradish subsequently countered by filing a motion to dismiss Ketzefs de novo appeal, claiming Ketzel failed to set the matter for hearing within the time constraints required under Johnson County Local Court Rule 26(12)(c). On October 28,2009, the district court considered arguments and granted Bradish’s motion to dismiss. The next day, Ketzel filed a motion to set aside the July 13, 2009, modified child support order, alleging that the district court lacked subject matter jurisdiction under the Uniform Interstate Family Support Act, specifically K.S.A. 23-9,205(a).
On December 18, 2009, Bradish filed a response with a supporting affidavit. Bradish acknowledged that she was no longer physically present in Kansas and had been living with Alexandra in Hong Kong since September 2008, where she had married a Hong Kong resident and Alexandra attended school. Bradish, however, argued that Kansas retains continuing, exclusive jurisdiction to modify the child support order. In her affidavit, Bradish made the following two statements. First, “I maintain Kansas as my domicile. I maintain my driver’s license in Kansas, I maintain my voter’s registration in Kansas, and I continue to pay income taxes to the state of Kansas as a resident of the state of Kansas.” Second, “I have not changed my residence or domicile to any place other than Kansas and I intend on returning to live in Kansas when able to do so.”
On June 15, 2010, the district court conducted a telephone conference between the parties to hear arguments and denied Ketzel’s motion. Ketzel’s subsequent motion to amend the court’s order was denied.
We note some features of the Act.
Frequently in America, separating couples move to other jurisdictions. So, after the parents go their separate ways, mother and child often move to a different state while father moves to a third state. Or, there can be any number of different combinations of these movements that can take them to several separate jurisdictions. Because we are a republic, child support laws and procedures vary with each jurisdiction. This lack of uniformity and resulting difficulties for those seeking to enforce payments of child support induced the states to adopt the Uniform Interstate Family Support Act. In Kansas, the Act begins at K.S.A. 23-9,101.
The goal of the Act is to eliminate multiple and inconsistent support orders. By using the procedures set out in the Act, and by obtaining the cooperation of various courts and child support enforcement agencies, one child support order controls, no matter where the parties have moved. This is accomplished through the concept of continuing exclusive jurisdiction. This rule limits when a court can modify a child support order. Under this system, only one controlling support order is in effect at any given time. In re Marriage of Metz, 31 Kan. App. 2d 623, 625, 69 P.3d 1128 (2003). A Kansas court exercises continuing, exclusive jurisdiction over a child support order issued consistent with Kansas law for “[a]s long as this state remains the residence of the obligor, the individual obligee or the child for whose benefit the support order is issued.” (Emphasis added.) K.S.A. 23-9,205(a)(1). All other states must defer jurisdiction unless each individual party consents in writing to the assumption of continuing jurisdiction by the court of another state. See K.S.A. 23-9,611(a); Gentzel v. Williams, 25 Kan. App. 2d 552, 965 P.2d 855 (1998).
Thus, we are required to decide if the district court here had tire authority to modify the existing support order. Subject matter jurisdiction is the authority of the court to hear and decide a specific action brought before that court. Marriage of Metz, 31 Kan. App. 2d at 625. Whether the district court has subject matter jurisdiction under the Act to modify its child support order is a question of law over which this court has unlimited review. In re Marriage of Myers, 30 Kan. App. 2d 1223, 1225, 56 P.3d 1286 (2002).
The district court erred by applying principles of probate law to this question of residence under the Act.
When the district court denied Ketzel’s motion to set aside the 2009 modified child support order, it relied on In re Estate of Phillips, 4 Kan. App. 2d 256, 604 P.2d 747, rev. denied 227 Kan. 927 (1980), and Bradish’s self-serving affidavit. The district court decided that Bradish was a resident of Kansas for purposes of determining its jurisdiction under the Act:
“Based on the statements in [Bradish’s] affidavit and based upon the definition of residence contained in the Phillips opinion, the Court is going to find that Cheri Bradish has not abandoned her Kansas residence, that she does not intend to establish a new residence in Hong Kong, and for those reasons she remains for the purposes of the Uniform Interstate Family Support Act a resident of Kansas
In denying Ketzel’s subsequent motion to amend the decree, the district court ruled that Kansas has not lost continuing, exclusive jurisdiction under the Act because Bradish was “domiciled in Kansas.” Domicile is not a term used in the Act.
The Phillips court had to decide if the decedent was a resident of Kansas or Missouri when he died. Knowing his life span was limited, the decedent moved to Johnson County. The court found he was in Kansas because of the advice of his lawyers that he could retain his Missouri residency and he planned the distribution of his estate based on his Missouri residency. The court determined he died a resident of Missouri. See 4 Kan. App. 2d at 266. Domicile and residence have been used in probate cases interchangeably for many years.
The district court’s interchangeable use of the terms residence and domicile results from its reliance on the holding in Phillips. In that case, the court reiterated that for jurisdictional purposes in probate actions “the terms ‘residence’ and ‘domicile’ are treated as equivalents.” 4 Kan. App. 2d at 260. We also note that when the district court denied Ketzel’s motion to amend the decree it also cited court of appeals’ opinions from Georgia and California which interpreted the term “residence” for purposes of UIFSA. See In re Marriage of Amezquita & Archuleta, 101 Cal. App. 4th 1415, 1421-22, 124 Cal. Rptr. 2d 887 (2002); Kean v. Marshall, 294 Ga. App. 459, 465-66, 669 S.E.2d 463 (2008).
To decide this question, we look first at the Act and not dated probate law or rulings from other jurisdictions. K.S.A. 23-9,205(a) prescribes the rule controlling the exclusive jurisdiction of a Kansas court when dealing with an interstate support order.
“(a) A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order:
(1) as long as this state remains tire residence of the obligor, the individual obligee or the child for whose benefit the support order is issued, or
(2) until all of the parties who are individuals have filed written consents widr the tribunal of this state for a tribunal of another state to modify the order and to assume continuing, exclusive jurisdiction.”
This same section is known as Section 205(a) in the Interstate Family Support Act (2008). Official comments to the Act are informative.
In fact, the comments to Section 205(a) of the Act undercut the district court’s ruling:
“As long as one of the individual parties or the child continues to reside in the issuing state, and as long as the parties do not agree to the contrary, the issuing tribunal has continuing, exclusive jurisdiction over its child-support order — which in practical terms means that it may modify its order. . . .
“Subsection (a)(1) states the basic rule, and subsection (a)(2) states an exception to that rule. First, the time to measure whether the issuing tribunal has continuing, exclusive jurisdiction to modify its order, or whether the parties and the child have left the state, is explicitly stated to be at the time of filing a proceeding to modify tire child-support order. Second, the term in subsection (a)(1) ‘is the residence’ makes clear that any interruption of residence of a party between the date of the issuance of the order and the date of filing the request for modification does not affect jurisdiction to modify. Thus, if there is but one order, it is the controlling order in effect and enforceable throughout the United States, notwithstanding the fact that everyone at one time had left the issuing state. If the order is not modified during this time of mutual absence, a return to reside in the issuing state by a party or child immediately identifies the proper forum at the time of filing a proceeding for modification. Although the statute does not speak explicitly to the issue, temporary absence should be treated in a similar fashion. Temporary employment in another state may not forfeit a claim of residence in the issuing state. Of course, residence is a fact question for the trial court, keeping in mind that the question is residence, not domicile." (Emphasis added.) Uniform Interstate Family Support Act § 205 Comment, 9 U.L.A. 94 (2011 Supp.).
Those comments clearly indicate the drafters intended to differentiate between the residence and domicile of all parties and tire children and that subsection (a)(1) calls for the retention of continuing, exclusive jurisdiction in Kansas only if the district court makes a finding that at least one of the parties or the child remained in the state as a resident at the time of filing. In In re Marriage of Metz, 31 Kan. App. 2d at 629, a panel of this court found that the comment shows, contrary to appellant’s argument, that subsection (a)(1) provides for the retention of continuing, exclusive jurisdiction, whereas subsection (a)(2) provides for tire loss of continuing, exclusive jurisdiction, Metz controls here.
Going further, we note that no Kansas court has held the term “residence” under K.S.A. 23-9,205(a)(1) is synonymous with domicile, nor will we. Because the Act itself offers no definition for the term “residence,” we turn to the definition established by the Kansas legislature in K.S.A. 77-201, Twenty-third, where it states:
“ ‘Residence’ means the place which is adopted by a person as the person’s place of habitation, and to which, whenever the person is absent, the person has the intention of returning. When a person eats at one place and sleeps at another, the place where the person sleeps shall be considered the person’s residence.”
Given the requirements of K.S.A. 77-201, Twenty-third, diere is ample evidence in the record to support a finding that Bradish and Alexandra were residents of Hong Kong and not residents of Kansas at the time the motion to modify was filed. The record does not indicate Bradish possessed a Kansas home or mailing address. Thus, the Hong Kong home where Bradish and Alexandra actually lived with Bradish’s husband was the center of all aspects of their domestic, social, and public life.
The district court ruled that Phillips required proof of two intents: “The first intent is to abandon Kansas as a residence, the second intent is to establish the new country or state as tire residence.” See 4 Kan. App. 2d at 261. The district court ruled that when intent is at issue, Bradish “has the more persuasive argument when it is her intent that is being construed. In other words, she intends to return to Kansas, she does not intend to change Kansas as her residence, and she considers herself as a resident of the State of Kansas.” Thus, the district court considered Bradish’s statements of intent in her affidavit dispositive.
The trouble with that holding is it ignores facts and relies on self-serving statements of intent. The ruling essentially makes the objective evidence meaningless. A simple self-serving statement that, “some day, I will return to Kansas” controls over all evidence to the contrary. The district court failed to consider this court’s discussion in Phillips regarding intent. Citing the Restatement (Second) of Conflict of Laws, § 18, Comment b, p. 70 (1971), the Phillips court noted that formal declarations as to what the declarant considers his or her residence or domicile to be are generally admissible as evidence of his attitude of mind. But whatever the context, “ ‘their accuracy may be suspect because of their self-serving nature, particularly tohen they are made to achieve some legal objective . . .’ ” (Emphasis added.) 4 Kan. App. 2d at 263. More importantly, this court ruled:
“Standing alone, an expressed intent to remain a resident of a state in which one no longer resides is not necessarily sufficient to retain residency when other facts are present that would indicate a contrary intent. As Restatement (Second) of Conflict of Laws notes, however, when a person’s significant course of conduct is closely divided between two or more states, his stated intent as to the state of his residence may be permitted to tip die scales in favor of that state.” 4 Kan. App. 2d at 264.
Bradish’s formal declarations in her affidavit of her intent to remain a Kansas resident, standing alone, do not counteract the objective view of her intent derived from the sum of her activity in Hong Kong. The record shows Bradish’s Hong Kong home is the center of all aspects of her life, Bradish married a Hong Kong resident who is CEO of a Hong Kong corporation that Bradish claims a 50 percent interest in and which employs her full-time, and Alexandra attends school in Hong Kong. Unlike In re Marriage of Anderson, 25 Kan. App. 2d 754, 969 P.2d 913 (1998), where the father moved from one state to another strictly for temporary employment, Bradish appears to have left Kansas to start a completely new life by establishing residency in Hong Kong. In Estate of Schoof v. Schoof, 193 Kan. 611, 614, 396 P.2d 329 (1964), our Supreme Court stated: “To effect a change of residence, there must be transfer of bodily presence to another place coupled with an intent to abide in the new location either permanently or indefinitely.” In her affidavit, Bradish indicated that she intended “on returning to live in Kansas when able to do so.” In other words, she intended to remain in Hong Kong indefinitely or for the foreseeable future. See 193 Kan. at 614. The record does not furnish a substantial basis of fact for any of the claims in Bradish’s affidavit. A reasonable mind would not accept Bradish’s claims sufficient to support a conclusion. See In re Estate of Farr, 274 Kan. 51, 58, 49 P.3d 415 (2002).
Bradish’s claim that she continued to pay income taxes to the State of Kansas is directly contradicted in an earlier sworn statement notifying Ketzel that she had not filed tax returns from 2006 onward. Bradish did not “maintain” her Kansas driving license. K.S.A. 8-248 commands any person issued a driving license shall notify the division within 10 days of any change in name by marriage or change in mailing or residence address. The photocopy of Bradish’s driving license from 2005 attached to her affidavit did not reflect Bradish’s Hong Kong address, but an old Kansas address that Ketzel claims was foreclosed upon. Also, the record is not clear whether Bradish kept her last name on her driving license or took her new husband’s last name of Keller and failed to notify the division. In her May 2009 domestic relations affidavit and the December 2009 affidavit, Bradish signed using the last name Bradish. But in the July 2009 response to the first set of interrogatories, Bradish answered using both the last name of Bradish and Keller and signed using the name Keller. Finally, other than Bradish’s claim that she maintained voter registration, there is no indication Bradish exercised her right to vote since relocating to Hong Kong. See Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. § 1973ff-2 (2006). Bradish could have simply chosen the option of registering to vote when she applied for her driving license in 2005.
Kansas courts lose continuing, exclusive jurisdiction under subsection (a) once all parties and the children have established homes elsewhere or no longer reside in Kansas. Metz, 31 Kan. App. 2d at 627. In Metz, the parties divorced in Kansas and the father subsequently moved to Oklahoma whereas the mother and children moved to Virginia. The father filed a motion in Kansas to modify his child support obligation. This court held that the Kansas court retained subject matter jurisdiction to enforce the original child support order after both parents and children moved from Kansas, but it no longer had subject matter jurisdiction to modify the child support order under K.S.A. 23-9,205(a)(1). 31 Kan. App. 2d at 630. See In re Marriage of Myers, 30 Kan. App. 2d at 1227, where the court held that Kansas lost continuing and exclusive jurisdiction under K.S.A. 23-9,205(a)(1) once the mother and child moved to Arkansas and the father to Texas.
In addition, all states that have adopted the Act have addressed this issue. All agree that the issuing state loses subject matter jurisdiction once all parties and the children no longer reside in the issuing state. See State ex rel. Brantingham v. Grate, 205 S.W.3d 317, 321 (Mo. App. 2006); In re B.O.G., 48 S.W.3d 312, 318 (Tex. Civ. App. 2001); Jurado v. Brashear, 782 So. 2d 575, 580 (La. 2001); Groseth v. Groseth, 257 Neb. 525, 533, 600 N.W.2d 159 (1999); Etter v. Etter, 18 P.3d 1088,1091 (Okla. App. 2001); Cohen v. Bowers, 180 Or. App. 409, 416, 43 P.3d 1150 (2002).
This court reviews the district court’s findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the district court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. An appellate court has unlimited review of conclusions of law. In re Marriage of Atchison, 38 Kan. App. 2d 1081, 1085, 176 P.3d 965 (2008).
The district court’s finding that Bradish is a Kansas resident is not supported by competent evidence, and the court has ignored other competent evidence that she is not a Kansas resident. The district court’s legal conclusion that Bradish is a Kansas resident misapplies probate law concepts to this proceeding. The district court, as a result, erroneously ruled that it had continuing, exclusive jurisdiction to modify the child support order under the Act when it did not.
Therefore, we reverse the district court and in compliance with K.S.A. 23-9,306 remand with directions to the district court to forward the matter to the appropriate tribunal in Missouri, where Ketzel is a resident.
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Brazil, J.;
The State charged Tracey Wilson with aggravated assault with a deadly weapon and criminal damage to property. The district court dismissed the charges following a preliminary hearing. The State appeals. We reverse and remand.
Tracey and Willie Wilson were in the midst of going through a divorce. Willie was visiting a friend, Evrette Jones, at his residence on November 9,2006, when Tracey arrived at that location. Tracey and Willie had been arguing about the divorce and the argument continued when she arrived. Tracey became angry and drove her vehicle into Willie’s vehicle multiple times causing significant damage. Willie was not available at the preliminary hearing on March 13, 2007. After Jones testified, the hearing was continued to June 4, 2007, when Willie testified,
Jones testified that he and his family came outside when they heard a crash. Willie was in the driveway looking at his vehicle which was already damaged. Jones saw Tracey back out of his driveway and then pull back in at a high rate of speed. Jones testified Tracey drove directly toward them. Willie ran one way and Jones ran the other. Tracey veered toward Willie. Tracey drove into Willie’s vehicle again. Tracey backed up and hit Willie’s vehicle another time. She then backed up and drove away.
Jones provided the police a written statement on the night in question. In it, Jones stated that Tracey sped into his driveway and hit Willie’s vehicle several times. It made no mention of Tracey trying to hit Jones or Willie. When Wilson’s attorney questioned him about this, he stated that at the time, he was “shook up” and Willie was hollering at the policeman, that Tracey had tried to hit him, and Jones was trying to calm him down. At another point in the cross-examination, Jones stated: “She was aiming for Will. The way he got up and screamed, she was trying to hit him because he was running and had dirt all over him. He even told the police officer she was trying to hit him.”
Willie also provided a written statement to police. In it, he stated Tracey threatened him that if he wasn’t going to be with her that he would either be dead or in jail. It went on to say that Tracey almost hit him with her car when she hit his vehicle. It also stated: “I feel that my life is in DANGER!!!” It went on to say: “I do take her threats seriously now after this last event. If I have to I will leave the state to get as far away from her as possible.”
Willie’s preliminary hearing testimony differed from his written statement. Willie testified Tracey hit his vehicle three times but stated he was not in any danger. Willie stated he was stressed out and under duress at the time he wrote the statement for police. Willie explained that when he wrote, “I feel that my life is in DANGER!!!” he meant that his life could be in danger in the future. Willie explained: “I just felt that was a danger that she was that angry at me to hit tire vehicles that I felt that I was in danger. But not like she [was] going to hit me with the truck then.”
Prior to the preliminary hearing, Willie wrote a second statement, which he provided to Tracey’s attorney. In it, he wrote: “ 1 don’t want to see [Tracey] go to jail or get in trouble.’ ” He explained at the preliminary hearing: “I didn’t think it was as serious . . . after everybody calmed down. I didn’t think it was, to me, that serious ‘cause she has never, you know — I knew she had never did nothing like that before. Had even been in trouble.” Thereafter, the following exchange took place between the State’s attorney and Willie during which Willie explained why he gave the second written statement to Tracey’s attorney:
“A. . . . [A]t the time we were talking about possibly reconciling and stuff like that, so it was — and we just get on, put it behind us and move forward.
“Q. Okay. And this case, the criminal case, was kind of getting in the way of that; would that be a fair statement?
“A. I guess.”
Willie also testified that he and Tracey were the only people outside when she was driving into his vehicle.
At the conclusion of the preliminary hearing, the judge dismissed the charges against Tracey and stated the State had failed to meet its burden to proceed. The State appeals.
Criminal damage to property
Tracey was charged with criminal damage to property which is “[c]riminal damage to property ... by means other than by fire or explosive . . . [intentionally injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of any property in which another has an interest without the consent of such other person.” K.S.A. 21-3720(a)(l).
There was no dispute in testimony at the preliminary hearing that Tracey intentionally damaged Willie’s vehicle. The key question became whether the criminal damage to property statute covers damage one inflicts to property partly owned by oneself. The vehicle that Tracey drove on the night in question and the vehicle damaged were acquired by Willie during Willie and Tracey’s marriage. The vehicle Tracey drove on the night in question was a Dodge Ram truck. The vehicle she damaged was a Kia Sorento. During their marriage, Willie purchased the Kia for Tracey and the Dodge for himself. The Dodge was titled in both of their names, but the Kia was in Willie’s name only. During the course of the divorce proceedings, the judge ordered that Willie use the Kia and Tracey use the Dodge because of the titling error.
After a lengthy discussion between counsel and the judge, the judge made the following ruling:
“I find that in these circumstances, the State has not met its burden to establish that a crime has been committed. At the very minimum, this very improvident act was committed in an act of anger and the damage was done without asking die person who had an interest in die property of whether it could be damaged or not. But die property also belonged to the defendant, she had a marital interest in it. . . .
“But given all of diis, I do not believe that die State has met its burden establishing probable cause diat the crime of criminal damage has been committed.”
It is this specific ruling from which the State appeals. The State specifically argues the fact that Tracey had a marital interest in the damaged Kia did not prevent the State from prosecuting her for criminal damage to property under K.S.A. 21-3720(a)(l). This raises an issue of statutory interpretation. Interpretation of a statute is a question of law over which this court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
“When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if die statute’s language or text is unclear or ambiguous diat we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.” In re 285 Kan. 53, 79, 169 P.3d 1025 (2007).
Here, the statute covers the intentional damage to any property in which another has an interest without that person’s consent. K.S.A. 21-3720(a)(l). The statute is clear and unambiguous and it covers, by its plain language, Tracey’s actions on the night in ques tion. Other states construing similarly worded statutes have ruled in this fashion.
In Gooch v. The State, 289 Ga. App. 74, 656 S.E.2d 214 (2007), the defendant was convicted of criminal damage to property. The defendant argued he could not be guilty when he damaged joint marital property. In construing the words “ ‘any property of another person,’ ” the court stated that property partially owned by another is sufficient to establish the offense. Furthermore, the court stated the State need only show that a person other than the defendant had a legal right to possess or occupy the property. 289 Ga. App. at 75.
In State v. Coria, 146 Wash. 2d 631, 48 P.3d 980 (2002), the defendant was convicted of malicious mischief for damaging community property owned by the defendant and his wife. On appeal, he argued he could not have damaged “ property of another ” since he owned the property along with his wife. 146 Wash. 2d at 633. The court indicated that as a purely literal matter, property owned jointly by a defendant and the victim is property of another. 146 Wash. 2d at 636.
In State v. Zeien, 505 N.W.2d 498 (Iowa 1993), the defendant was convicted of criminal mischief for damaging the contents of his estranged wife’s home. The criminal mischief statute applied to damage done by one who has no right to so act. 505 N.W.2d at 498. The court determined that the wording of the statute and the public policies of domestic violence and preventing damage to property suggested that the statute should apply to marital property as it does to any other property. 505 N.W.2d at 499.
The district court erred when it dismissed the charge of criminal damage to property against Tracey at the conclusion of the preliminary hearing, and we reverse the judgment and remand for further proceedings.
The appellee argues the criminal damage to property statute is unconstitutionally vague. This issue was not raised below, presumably because the appellee prevailed below in having the complaint dismissed. Generally, constitutional arguments asserted for the first time on appeal are not properly before the court for review. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007). See also In re Estate of Zahradnik, 6 Kan. App. 2d 84, 92, 626 P.2d 1211 (1981) (determining that two new issues raised in appellee’s brief were not properly before court). This is the State’s appeal and Wilson did not file a cross-appeal. The appellee will have an opportunity to raise this issue with the district court on remand.
Aggravated assault with a deadly weapon
“In reviewing the trial court’s dismissal of a complaint, this court must examine the evidence de novo, using the same standard to weigh the evidence as the trial court used, drat is, whether the evidence is sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the defendant’s guilt.” State v. Romo-Uriarie, 33 Kan. App. 2d 22, 27, 97 P.3d 1051, rev. denied 278 Kan. 851 (2004).
See State v. Horton, 283 Kan. 44, 57, 151 P.3d 9 (2007).
In reviewing the evidence, the court draws inferences in favor of the State. Moreover, the evidence need only show probable cause, not guilt beyond a reasonable doubt. Our role is not to decide whether charges should have been filed or whether the possibility of conviction is likely or remote. State v. Anderson, 270 Kan. 68, 71, 12 P.3d 883 (2000). If there is conflicting testimony at the preliminary hearing, the court must accept that version which is most favorable to the State. State v. Bell, 268 Kan. 764, 764-65, 1 P.3d 325 (2000).
Aggravated assault with a deadly weapon is intentionally placing another in reasonable apprehension of immediate bodily harm by using a deadly weapon, in this case, a vehicle. K.S.A. 21-3408; K.S.A. 21-3410. The judge in dismissing this count explained that the State failed to meet its burden to proceed because Willie testified he did not believe he was in danger on the night in question. Thus, the judge reasoned, an essential element of the crime charged (reasonable apprehension of immediate bodily harm) had not been demonstrated.
This conclusion would be correct if the only evidence of reasonable apprehension of immediate bodily harm had been Willie’s testimony at the hearing. However, his written statement from the night in question was admitted as evidence as well. In it, he stated (1) that Tracey threatened his life verbally on the night in question; (2) that Tracey almost hit him with her vehicle; (3) that his life was in danger; and (4) that he was willing to leave the State to get away from Tracey. Willie admitted during cross-examination that he did not want Tracey to get into trouble and that there had been some talk of Willie and Tracey reconciling.
In addition, Jones testified that Tracey drove her vehicle toward Willie and that Willie had to run to get out of the way. He also testified that Willie was still “shook up” when the police arrived, that he kept telling them that Tracey had tried to hit him, and that Jones was trying to calm him down.
As is indicated above, the standard of proof at a preliminary hearing is not beyond a reasonable doubt. The State had to show probable cause that Tracey committed the crime of aggravated assault with a deadly weapon. Conflicts in evidence must be resolved in favor of the State at the preliminary hearing. It’s unfortunate that the preliminary hearing was bifurcated and that Willie’s testimony occurred approximately 2Vz months after Jones testified. That may explain why the trial court made no mention of Jones’ testimony when it made its findings and rulings at the conclusion of Willie’s testimony. Jones’ testimony clearly conflicted with Willie’s and there was no apparent reason for him to testify untruthfully. Willie, on the other hand, was still in the midst of a divorce in which there had been efforts to reconcile. As argued by the State, it is not unusual for victims in domestic violence cases to recant or minimize a spouse’s conduct. The evidence presented by the State was sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of Tracey’s guilt. The district court erred in dismissing the aggravated assault charge.
Reversed and remanded for further proceedings. | [
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Malone, J.:
Kevin Teter appeals his conviction of one count of unlawful acquisition of pseudoephedrine in violation of K.S.A. 2007 Supp. 65-7006(d) (now codified at K.S.A. 2011 Supp. 21-5709[d]). This statute makes it unlawful for any person to purchase more than 3.6 grams of pseudoephedrine base or ephedrine base in any transaction or to purchase more than 9 grams of pseudoephedrine base or ephedrine base within a 30-day period. Teter argues that the statute is unconstitutionally vague and overbroad. For the reasons set forth herein, we reject Teter s constitutional challenges and conclude that the statute is rationally related to the legitimate interest of preventing the manufacture of methamphetamine in Kansas.
In early 2008, Reno County Sheriffs Deputy Rick Newton was assigned the task of visiting pharmacies in Reno County and examining the purchase logs they are required to keep by law. Newton’s investigation uncovered the fact that Teter had purchased 322 tablets of pseudoephedrine-based medication during a 24-day period in January 2008. Specifically, the purchase logs disclosed that on January 4, 2008, Teter purchased one package of Genaphed from the Medicine Shoppe containing twenty-four 30-milligram tablets. On January 12, 2008, Teter purchased two packages of Equate Suphedrine from Wal-Mart, each containing forty-eight 30-milligram tablets. On January 21, 2008, Teter purchased one package of Sudafed from Dillon’s #25 containing ten 240-milligram tablets. On Januaiy 28, 2008, Teter purchased two packages of Kroger Suphedrine from Dillon’s #10, each containing forty-eight 30-milligram tablets. On the same day, Teter purchased two additional packages of Equate Suphedrine from Wal-Mart, each containing forty-eight 30-milligram tablets.
On June 11, 2008, Teter was charged with unlawful acquisition of pseudoephedrine, a Class A misdemeanor, by purchasing more than 9 grams of pseudoephedrine base within a 30-day period. Teter was found guilty following a bench trial before a district magistrate judge, and he appealed to the district court. On September 29, 2010, Teter filed a motion to dismiss before the district court, arguing that K.S.A. 2007 Supp. 65-7006(d) is unconstitutionally vague because the average citizen would not know how much pseudoephedrine base or ephedrine base was contained in cold or allergy medication sold in conventional blister packaging. Teter also argued that the statute is unconstitutionally overbroad because it criminalizes potentially legitimate activity. No hearing on the motion was requested.
A bench trial was held on November 19 and December 6,2010. Newton testified for the State about his investigation into Teter s purchases of pseudoephedrine-based medication. Newton explained that he calculated the total amount of pseudoephedrine base Teter purchased by multiplying the number of tablets by the milligrams of active ingredient (here, pseudoephedrine hydrochloride) in each tablet and then converting the resulting number from milligrams to grams. To reduce this number to the pure anhydrous pseudoephedrine base — that is, to discount the weight of the hydrochloride salt — Newton then applied a conversion factor of .82, which is the conversion factor promulgated by tire International Narcotics Control Board to be applied when pseudoephedrine is bound with a hydrochloride salt. Using this methodology, Newton determined that Teter had purchased 9.6432 grams of pure pseudoephedrine base during the time period in question.
The State also presented the testimony of several witnesses from the stores where Teter had allegedly purchased the pseudoephedrine-based medications. The store representatives verified that they followed the protocol for selling such medications, which included recording the name, address, and signature of the purchaser as well as checking photo identification. Although some of the store representatives were familiar with Teter, none had independent recollections of the alleged purchases. Teter did not present any evidence at the trial.
During closing argument, Teter asked that the case be dismissed. He reiterated the overbreadth argument made in his motion to dismiss and noted that the statute could also reach people who purchased pseudoephedrine-based medications for legitimate use by their family or friends. In the alternative, he argued that the State had failed to prove the charge beyond a reasonable doubt, challenging the adequacy of the foundation laid for the conversion factor used by Newton and the accuracy of the purchase records. The district court overruled the motion to dismiss and stated:
“[W]ith respect [to] the constitutionality of the statute I reviewed that motion. The argument as I understand it is [tíre statute] really doesn’t give people fair notice. Well, it does because ... it proscribes [the] possession of more than nine grams. If there’s any confusion, it’s — you can buy a lot more than nine grams of die active ingredient without violating the statute because there’s a conversion factor. So any [confusion] about diat works in favor of the defendant. But it’s pretty clear.”
The district court then found that an adequate foundation had been laid for the conversion factor and that tire purchase records were rehable evidence that Teter had made the purchases. The district court found Teter guilty as charged and sentenced him to 12 months in the county jail with probation. Teter timely appealed his conviction.
On appeal, Teter argues that K.S.A. 2007 Supp. 65-7006(d) is unconstitutionally vague because an ordinary person would not be expected to know the conversion factor that is used to determine how much pseudoephedrine base or ephedrine base is contained in cold or allergy medication sold in conventional blister packaging and thus there is no fair warning as to the amount of medication that would trigger the statute. He also argues that the statute is unconstitutionally overbroad because it does not distinguish between the acquisition of pseudoephedrine base or ephedrine base for legal but potentially off-label purposes, such as weight loss or bodybuilding, and illegal purposes, namely the manufacture of methamphetamine. Although Teter objected to some of tire evidence presented by the State at his bench trial based on lack of foundation, he has not raised this issue on appeal. An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
The State contends that K.S.A. 2007 Supp. 65-7006(d) is not unconstitutionally vague because the 9-gram limitation in the statute is unambiguous and, even if an ordinaiy person were unaware of the conversion factor, the application of that conversion factor weighs in favor of the defendant. The State further contends that the statute is not unconstitutionally overbroad because the acqui sition of more than 9 grams of pseudoephedrine base or ephedrine base within a 30-day period is not a constitutionally protected activity and because there is a rational relationship between the limitation and the legitimate goal of preventing the manufacture of methamphetamine.
K.S.A. 2007 Supp. 65-7006(d) provides as follows:
“It shall be unlawful for any person to purchase, receive or otherwise acquire at retail any compound, mixture or preparation containing more than 3.6 grams of pseudoephedrine base or ephedrine base in any single transaction or any compound, mixture or preparation containing more than nine grams of pseudoephedrine base or ephedrine base within any 30-day period.”
The interpretation of a statute and the determination of its constitutionality are questions of law over which an appellate court has unlimited review. Whenever a court considers the constitutionality of a statute, the separation of powers doctrine requires the court to presume the statute is constitutional. Consistent with this principle, all doubts must be resolved in favor of the statute’s validity, and a court must interpret the statute in a manner that makes it constitutional if there is any reasonable way to do so within the apparent intent of the legislature in passing the statute. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009).
As a preliminary matter, the State asserts that Teter’s constitutional claims have not been preserved for appellate review because the State was given no notice that Teter’s motion to dismiss would be considered at the close of evidence at trial and the State was deprived of the opportunity to present evidence on the constitutional issues. But the motion to dismiss was filed in advance of the bench trial and provided to the State. Furthermore, the State does not indicate on appeal what additional evidence it would have presented at trial in order to address the motion. Teter clearly raised the constitutionality of the statute before the district court, both with respect to vagueness and overbreadth, and we conclude the constitutional issues have been preserved for appeal.
Turning to the merits of the parties’ arguments, Teter first contends that K.S.A. 2007 Supp. 65-7006(d) is unconstitutionally vague. A claim that a statute is void for vagueness necessarily requires a court to interpret the language of the statute in question to determine whether it gives adequate warning as to the proscribed conduct. A statute that either requires or forbids the doing of an act in language that is so vague that persons of common intelligence must guess at its meaning and will differ as to its application violates the Fourteenth Amendment to the United States Constitution and is thus void for vagueness. State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009). In determining whether a statute is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement. City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 (1990).
Teter’s vagueness argument is centered on his contention that an ordinary person would not be expected to know the conversion factor that is used to determine how much pseudoephedrine base or ephedrine base is contained in cold or allergy medication because the method of applying the conversion factor is not listed on the packaging. The State responds that there is nothing about the language of the statute itself that is vague and, even if an ordinary person were unaware of the conversion factor, the application of the conversion factor weighs in favor of the defendant. Neither party cites any caselaw, and the question raised — whether a statute prohibiting the acquisition of a certain weight of a nonprescription drug is unconstitutionally vague where the drug is sold in a form that contains other, nonregulated ingredients — appears to be an issue of first impression not only in Kansas but across the countiy as well.
K.S.A. 2007 Supp. 65-7006(d) was first enacted by the Kansas Legislature in May 2007. L. 2007, ch. 139, § 13. It appears to be based upon a similar provision enacted by the United States Congress in 2006 as part of the Combat Methamphetamine Epidemic Act of 2005 (CMEA). 21 U.S.C. § 844(a) (2006) (“It shall be unlawful for any person to knowingly or intentionally purchase at retail during a 30 day period more than 9 grams of ephedrine base, pseudoephedrine base, or phenylpropanolamine base in a scheduled listed chemical product....”). For an overview of the CMEA and of various state statutes regulating the sale of methampheta mine precursor drugs such as pseudoephedrine, see Comment, The Combat Methamphetamine Epidemic Act: New Protection or New Intrusion?, 39 Tex. Tech L. Rev. 379 (2007). For an overview of the problem in Kansas, see Peterson & Jennings, Methamphetamine-A Recipe for Disaster, 73 J.K.B.A. No. 9, 7 (2004).
The State’s argument that K.S.A. 2007 Supp. 65-7006(d) is not unconstitutionally vague is persuasive. There is nothing in the language of the statute, which clearly prohibits the acquisition of more than 3.6 grams of pseudoephedrine base or ephedrine base in any one transaction or more than 9 grams in any 30-day period, that would leave persons of common intelligence guessing as to what is prohibited or that would be open to arbitrary and discriminatory enforcement. To the extent that there is any ambiguity because a person of common intelligence may not know how the weights are calculated, that ambiguity is external to the statute and may likewise be clarified by outside information. The milligrams of active ingredient (e.g., pseudoephedrine hydrochloride) are available on the medication packaging. While the amount of pure anhydrous pseudoephedrine base or ephedrine base may not be specifically listed on tire medication packaging itself, detailed information concerning acquisition limitations is available to the general public. See Drug Enforcement Administration, General Information Regarding the Combat Methamphetamine Epidemic Act of 2005 (Title VII of Public Law 109-177) (May 2006), http:// www. deadiversion.usdoj. gov/meth/cma2005_general_info.pdf. Furthermore, the conversion factors promulgated by the International Narcotics Control Board, referred to by Newton in his trial testimony, are made available to the public at http://toww.incb.org/ pdf/e/list/red.pdf. A review of this information confirms that the conversion factor for pseudoephedrine hydrochloride is indeed .82, as Newton testified.
Moreover, as the State notes, any ambiguity regarding how the weights are calculated favors the criminal defendant. A person of common intelligence, following common understanding and practice, would most likely count the entire weight of the active ingredient as listed on the medication packaging when determining whether he or she was exceeding the acquisition limitations. If such person acquired 9 grams of pseudoephedrine hydrochloride as listed on the medication packaging, he or she still would be within the permissible statutory limitation due to the application of the conversion factor to exclude the weight of the hydrochloride salt. In Teter’s case, he actually purchased 11.76 grams of pseudoephedrine hydrochloride within a 30-day period, but this amounted to only 9.6432 grams of pure pseudoephedrine base during the time period in question. By simply keeping track of the weight of the active ingredient listed on the medication packaging, a consumer cannot accidentally exceed the limitations set forth in the statute. Because K.S.A. 2007 Supp. 65-7006(d) gives adequate warning as to the proscribed conduct, we conclude the statute is not unconstitutionally vague.
Teter also contends that the statute is unconstitutionally over-broad because it fails to distinguish between the acquisition of pseudoephedrine base or ephedrine base for legal purposes and for illegal purposes and therefore criminalizes potentially legitimate activity. While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected. Almost every law is potentially applicable to constitutionally protected acts. A successful overbreadth challenge can be made only when (1) the protected activity is a significant part of the law’s target, and (2) there exists no satisfactory method of severing the law’s constitutional from its unconstitutional applications. State v. Whitesell, 270 Kan. 259, 270, 13 P.3d 887 (2000). The overbreadth doctrine should be employed sparingly and only as a last resort. Smith v. Martens, 279 Kan. 242, 253, 106 P.3d 28 (2005).
The Kansas Supreme Court recently visited the overbreadth doctrine in Dissmeyer v. State, 292 Kan. 37, 249 P.3d 444 (2011). In 2007, the Kansas Legislature passed the Kansas Expanded Lottery Act (Act). K.S.A. 2007 Supp. 74-8733 et seq. The Act authorized the operation of certain gaming facilities, electronic gaming machines, and other lottery games, but the Act specifically outlawed ownership of and public access to “gray machines.” K.S.A. 2007 Supp. 74-8761. “Gray machine” was defined to mean
“any mechanical, electro-mechanical or electronic device, capable of being used-far gambling, that is: (1) Not authorized by the Kansas lottery, (2) not linked to a lottery central computer system, (3) available to the public for play or (4) capable of simulating a game played on an electronic gaming machine or any similar gambling game authorized pursuant to the Kansas expanded lottery act.” (Emphasis added.) K.S.A: 2007 Supp. 74-8702(g).
In Dissmeyer, the Supreme Court found that the phrase “capable of being used for gambling” in the provision defining gray machines potentially criminalized the use of such equipment as computers, telephones, radios, televisions, and even the classic children’s game of Chutes and Ladders. 292 Kan. at 42. The Supreme Court determined that the statute defining gray machines, in combination with its enforcement provisions, made it unlawful to own or operate a broad spectrum of property drat does not relate to a legitimate government interest in controlling gambling. 292 Kan. at 42-44. Thus, the Supreme Court held those statutory provisions, as they relate to gray machines, were unconstitutionally overbroad. 292 Kan. at 44.
Dissmeyer is clearly distinguishable from the facts herein. In Dissmeyer, the expansive definition of gray machines made it unlawful to own or operate a broad spectrum of property that under some circumstances is constitutionally protected. Here, K.S.A. 2007 Supp. 65-7006(d) is narrowly tailored to criminalize the purchase of more than 3.6 grams of pseudoephedrine base or ephedrine base in any single transaction or the purchase of 9 grams of pseudoephedrine base or ephedrine base within any 30-day period. Recognizing that the Constitutions of the United States and Kansas protect the right of citizens to engage in commerce, K.S.A. 2007 Supp. 65-7006(d) still allows any person to purchase a sufficient quantity of pseudoephedrine for legitimate personal use during a 30-day period. In Teter’s case, he purchased 322 tablets of pseudoephedrine- based medication during a 24-day period, and even this large quantity amounted to only 9.6432 grams of pure pseudoephedrine base — barely over the legal limit.
As courts have recognized, almost every law is potentially applicable to constitutionally protected acts, and the overbreadth argument should be applied sparingly and only as a last resort. See, e.g., Martens, 279 Kan. at 253. Here, there is no substantial intrusion upon an individual’s liberty by limiting the amount of pseudoephedrine which can be purchased to 3.6 grams in any transaction or 9 grams within a 30-day period. We conclude that K.S.A. 2007 Supp. 65-7006(d) is not unconstitutionally overbroad.
As the State implicitly recognizes, Teter’s overbreadth argument is better characterized as a due process challenge to the validity of the statute. Because Teter does not allege that the statute infringes upon a fundamental right or involves a suspect classification, the rational basis test — the lowest level of judicial scrutiny — applies to determine whether K.S.A. 2007 Supp. 65-7006(d) violates due process. Under the rational basis test, a statute will survive a due process challenge if it furthers a legitimate goal and the means chosen by the legislature are rationally related to that goal. See State v. Voyles, 284 Kan. 239, 258, 160 P.3d 794 (2007).
When read as a whole, it is clear that the legislative intent of K.S.A. 2007 Supp. 65-7006 is to prevent the manufacture of controlled substances, particularly methamphetamine, which is clearly a legitimate goal. To advance that goal, the Kansas Legislature chose to limit the availability of pseudoephedrine and ephedrine, which are precursor drugs essential to the manufacture of methamphetamine. The Kentucky Court of Appeals, in evaluating the constitutionality of a similar Kentucky statute, found that an acquisition limitation of 9 grams of pseudoephedrine in a 30-day period was neither constitutionally unreasonable nor arbitrary. The court noted that to exceed the statutory limit, an individual would have to purchase over three-hundred 30-milligram tablets. Pitcock v. Commonwealth, 295 S.W.3d 130, 134 (Ky. App. 2009), rev. denied October 21, 2009. The Appellate Court of Illinois found that an Illinois statute criminalizing the purchase of more than 7,500 milligrams (7.5 grams) of pseudoephedrine in a 30-day period was not “unreasonable merely because some purchasers without the intent to manufacture methamphetamine’ might violate its terms or suffer inconvenience.” People v. Willner, 392 Ill. App. 3d 121, 126, 924 N.E.2d 1029 (2009), rev. denied September 30, 2009.
Likewise, the acquisition limitations put in place by the Kansas Legislature in K.S.A. 2007 Supp. 65-7006(d) promote the legiti mate goal of preventing the manufacture of methamphetamine in Kansas. Teter malees no attempt to challenge this contention. The acquisition limits set forth in the statute are rationally related to this goal and do not substantially intrude upon an individual’s right to purchase pseudoephedrine-based medication for legitimate personal use. Therefore, we conclude the statute does not unconstitutionally violate due process.
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Arnold-Burger, J.:
This case involves an administrative policy adopted by the Johnson County District Court in 1990 and readopted in 2006 that required a mandatory 6-hour detention of all persons arrested for driving under the influence (DUI) before they were allowed to post a scheduled bond. Under our Supreme Court’s holding in State v. Cuchy, 270 Kan. 763, 19 P.3d 152 (2001), there is no dispute that this policy was unlawful because it did not require an individualized determination as to whether the driver is intoxicated and a danger to himself or herself or others. Russel Rickerson was arrested for DUI and, pursuant to the policy, was unlawfully denied the opportunity to post bond for 6 hours. We are asked to determine the appropriate remedy for Rickerson’s unlawful detention. Because we find, as did the Cuchy court, that dismissal is the appropriate sanction for institutional noncompliance and systematic disregard of the law, we reverse the district court and remand the case with instructions to vacate Rickerson’s conviction and dismiss the DUI charge.
Factual and Procedural History
The facts are not in dispute. On December 2,2009, at 8:02 p.m., Johnson County Sheriff s Deputy Jonathan Koch pulled over Rickerson because of an inoperative tag light on his truck. After further investigation, Rickerson was arrested for DUI and transporting an open container. Approximately 1 hour later, Rickerson submitted to a breath test that showed his breath alcohol content (BAC) was .158 — almost twice the legal limit. See K.S.A. 2009 Supp. 8-1567(a)(2). At 10:34 p.m. — more than 2 hours after his arrest— Rickerson was booked into jail, where he was held under a policy promulgated by the district court that required a mandatory 6-hour hold on all defendants arrested for DUI before they could post the scheduled bond. Although Rickerson’s son and wife, who were both sober licensed drivers over the age of 18, arrived at the police station to bond him out, they were told they could not post Rickerson’s bond until the mandatory 6 hours had passed. He was finally allowed to post bond and released to his wife at 2:32 a.m.
The State charged Rickerson with DUI and two other traffic offenses.
Pertinent to this appeal, Rickerson moved to dismiss the case because he was not timely released from jail as a result of the mandatory 6-hour detention policy. He argued dismissal was justified under the holding in Cuchy, 270 Kan. 763, which we will discuss later in this opinion. In support, Rickerson attached to his motion four decisions by other district court judges and a magis trate in Jewell, Saline, Labette, and Johnson County District Courts that dismissed DUI charges based on the defendants’ detentions under unlawful policies of mandatory-minimum detentions of DUI arrestees. Included was a 2002 judgment by Johnson County District Judge John P. Bennett, State v. Vaters, Johnson County District Court case No. 02-CR-1530, that dismissed a DUI charge under the reasoning in Cuchy.
A magistrate judge granted Rickerson s motion to dismiss, and the State appealed
After conducting a hearing on Rickerson’s motion to dismiss, a district magistrate judge granted the motion “[b]ased on the arguments of the parties, case law, local law and [the Voters decision].” As a result, the magistrate dismissed all of the charges and released Rickerson from his bond requirement. The State timely appealed to the district court.
The district court conducted an evidentiary hearing on Rickerson s motion to dismiss
The district court thereafter conducted a hearing on Rickerson’s motion to dismiss, which, the court clarified at the outset, was limited to the issue of the court’s policy requiring the 6-hour mandatory detention of DUI arrestees. Importantly, the State did not dispute that the policy did not require an individualized determination of whether the DUI arrestee was a danger to himself or herself or others. The evidence also showed that Johnson County eliminated the policy 5 months after Rickerson’s arrest.
Deputy Koch first testified concerning the circumstances surrounding Rickerson’s arrest and detention. Koch testified that Rickerson never asked Koch for additional testing and when asked if he would take the breath test, Rickerson responded, “ ‘Sure, I am guilty.’ ” Rickerson asked Koch if he could use tire phone, but Koch could not recall if Rickerson told him why he wanted to use tire phone. Koch responded that Rickerson would have access to a phone once he was processed and placed in the jail.
Koch confirmed that he made no individualized determination that Rickerson was a risk to anyone — other than to note that he arrested him because he could not drive safely — because Koch felt he had no discretion to release him under the mandatory 6-hour hold policy. He, likewise, had no reason to assess whether Rickerson could appropriately be released to his wife or son.
Captain Doug Baker, who supervises the patrol unit responsible for Rickersoris detention, also testified. Baker explained that the Johnson County Sheriff s Department mandatory policy of detaining DUI arrestees for 6 hours after their arrest is part of the department’s bond schedule for certain traffic offenses issued in November 2005. That policy was put into place as the result of the district court’s promulgation of the same mandatory 6-hour hold policy in 1990. According to Baker, the district court’s repromulgation of that policy in 2006 resulted from modifications that Baker had suggested to the chief judge of the district court that had nothing to do with the 6-hour hold policy. When he made those suggestions to the court, Baker was unaware of the 2002 Voters decision, which dismissed a DUI case based on Cuchy and the district court’s unlawful mandatory detention policy.
Rickerson also testified at the hearing on his motion to dismiss. Pertinent to this appeal, he testified that despite his request to use the phone when he got into Koch’s car following his arrest, Rickerson was not allowed to use a phone until more than 3 hours after his arrest. He wanted to use the phone to call an attorney because he “knew [he] was in a lot of trouble,” and he “[w]anted to know what [his] options were, what [he] needed to do to prove [his] innocence” because “[he] didn’t feel like [he] was that intoxicated” based on the number of beers he drank that night. He wanted to be released earlier “[s]o [he] could get ahold of an attorney at a reasonable time so [he] could find out where [he] need[ed] [to] go to get a blood test or — -and what [his] rights were,” which he would not be able to do through the jail phone because he was sure it would not be a private conversation.
He further testified that by the time he was allowed to use a phone in the jail, he did not call an attorney because he “knew that [he] couldn’t do anything about — [his] blood alcohol had changed by that time three and a half hours later. [He] didn’t figure that— that [he] had any chance of . . . proving anything” with a blood test. In other words, by that time, he knew that another blood test “wasn’t going to do [him] any good anyway.”
At the close of the hearing, Rickerson’s counsel informed the district court that he was seeking dismissal of the case against Rickerson based on the unlawful detention; he did not want the alternative remedy of suppression of the breath test results. After hearing the parties’ arguments, the district court took the matter under advisement.
The district court held dismissal was not warranted as a result of Rickerson’s unlawful detention
Subsequently, the district court orally pronounced its judgment denying dismissal and later entered its written judgment. In short, the court denied dismissal upon finding the detaining officers were not at fault for following the district court’s administrative detention order and because Rickerson “did not [lose an] opportunity to prepare a defense.” The district judge noted at the hearing that “it is kind of embarrassing because clearly our policy was inconsistent not only with Judge Bennett’s decision but more importantly perhaps with the Supreme Court decision in Cuchy.” He then asserted that “if Mr. Wells practiced law over here a little bit more often, we might have cleaned this up a little earlier in the program.” The judge went on to conclude that “the reasoning of Cuchy would dictate dismissal . . . only ... if there was a lost opportunity to prepare a defense.” Consequently, the court ordered the case set for trial.
Rickerson was convicted of DUI after a bench trial on stipulated facts
The parties subsequently submitted the case to the district court for bench trial on stipulated facts. Based on the stipulated facts, the district court found Rickerson guilty of DUI in violation of K.S.A. 2009 Supp. 8-1567(a)(2) (BAC of .08 or more as measured within 2 hours of operating a vehicle). The court’s docket indicates that the State had dismissed the remaining two charges on the same date the stipulation of facts was filed. Following his sentencing— the execution of which was stayed pending appeal — Rickerson filed this timely appeal.
Analysis
The decision in Cuchy is key
Because Cuchy is key to Rickerson’s arguments in this appeal, it helps to pause here to discuss the two key holdings in that case.
First, Cuchy held that the Pottawatomie County jail’s policy that required all DUI arrestees to be held for 12 hours before they were allowed to post bail was unlawful because it did not require any individualized, reasonable determination based on an officer’s personal observations that tire arrestee is intoxicated and would pose a danger to himself or herself or others if released. Such an individualized determination would clearly justify a detention without bail. 270 Kan. at 764, 772. Finding persuasive the reasoning of the Supreme Court of North Dakota in City of Jamestown v. Erdelt, 513 N.W.2d 82 (N.D. 1994) — which found such blanket detention policies unlawful under that jurisdiction’s public-intoxication statute and the state constitutional provision governing the right to bail — Cuchy held that such an individualized determination of the risks of danger posed by the detained defendants was required in order to harmonize K.S.A. 2000 Supp. 22-2901(l)’s requirements for first appearances with the right to make bail which is guaranteed by § 9 of the Kansas Constitution Bill of Rights. 270 Kan. at 768-69, 772.
Second, Cuchy considered the appropriate remedy for the defendants’ unlawful detentions. Ultimately, our Supreme Court observed that the extreme remedy of dismissal based solely on an unlawful detention under such an automatic or mandatory-minimum detention policy is justified:
(1) where the defendant who posed no safety threat can show actual prejudice, i.e., that the detention substantially impeded his or her ability or opportunity to prepare a defense, see 270 Kan. at 773-74; or,
(2) where, despite a lack of actual prejudice to the defendant, the sanction of dismissal is justified because of institutional noncompliance with and systematic disregard for the law, i.e., where the unlawful policy is followed in contravention of a prior court decision disapproving such automatic detentions, see 270 Kan. at 774-75.
The unlawfulness of the Johnson County mandatory 6-hour detention policy is not challenged on appeal
Applying the reasoning of Cuchy to the stipulated facts, it is clear that Johnson County’s mandatory 6-hour hold policy for DUI arrestees was unlawful, and the parties do not challenge that conclusion on appeal. The parties stipulated below that Koch did not make any individualized determination that Rickerson was intoxicated and a danger to himself or others. The only question is what the remedy should be, if any.
Our standard of review
Appellate review of a district court’s denial of a motion to dismiss on a strictly legal ground, as here, is unlimited. State v. Garcia, 282 Kan. 252, 260, 144 P.3d 684 (2006).
Under the facts of this case, dismissal was the appropriate remedy for Rickersoris unlawful detention
Rickerson argues the district court erred in not dismissing the charges because the mandatory-detention policy was the result of institutional noncompliance with, and systematic disregard for the law, in light of the prior court decisions in Cuchy and Voters. He contends that contrary to the district court’s interpretation of Cuchy, a showing of prejudice is unnecessary where dismissal is sought as a sanction. In the alternative, he asserts that he did present sufficient evidence of actual prejudice. The State responds that there was an insufficient showing of actual prejudice, the Voters decision was not binding on other judges in the district court, and there was no showing that the jail was aware of the Voters decision.
We do not find it necessary to review the factual findings and conclusion by the district court that Rickerson “did not [lose an] opportunity to prepare a defense,” because we find that under the unique circumstances in this case of institutional noncompliance with and systematic disregard for the prior decision of our Supreme Court in Cuchy, dismissal was die appropriate remedy and the issue of prejudice was irrelevant. The district court’s oral pronouncement of its judgment indicates its decision was based on the erroneous legal conclusion that, under the reasoning in Cuchy, dismissal would only be appropriate if there was a lost opportunity to prepare a defense, i.e., if there was actual prejudice. As summarized above, that was not the holding in Cuchy.
Moreover, the district court’s separation of the sheriff s department from the district court is an artificial distinction in light of the Supreme Court’s holding in Cuchy. It is based on an erroneous legal conclusion that the officers’ detention of arrestees is excusable as long as they are relying on a departmental or court-ordered policy. As Rickerson properly notes, Cuchy’s point regarding the appropriateness of dismissal as a sanction — and the Supreme Court of North Dakota’s point in the City of Jamestown, which Cuchy found persuasive on this issue — was not focused upon whether a court versus a law enforcement agency enacted the policy or whether there was some sort of good-faith reliance by law enforcement on an unlawful detention policy ordered by the court. Rather, Cuchy’s focus was whether there was “ ‘institutional non-compliance and systematic disregard of the law.’ ” (Emphasis added.) Cuchy, 270 Kan. at 774 (quoting City of Jamestown, 513 N.W.2d at 86). As summarized in Cuchy, the North Dakota Supreme Court affirmed the district court’s sanction of dismissal in City of Jamestown upon finding that the city had wholly disregarded that court’s prior decision holding the city’s practice of detaining DUI arrestees for 8 hours despite the availability of immediate bond was unlawful. 270 Kan. at 768, 774-75 (citing City of Jamestown, 513 N.W.2d at 85-86). Applying that same reasoning to the facts before it, Cuchy reversed the district court’s dismissal as a sanction because the officers had not disregarded a ruling or decision by the district court that preceded the defendants’ arrests in the consolidated cases before it. 270 Kan. at 775.
The only authority cited by the State on this issue is City of Fargo v. Stutlien, 505 N.W.2d 738 (N.D. 1993). In that case, the North Dakota Supreme Court found that imposition of a court-ordered mandatory-minimum detention policy for DUI arrestees was unlawful, but it declined to dismiss a DUI charge because there was not a showing of “ ‘institutional noncompliance.’ ” 505 N.W.2d at 745. In support, Stutlien reasoned that the sanction of dismissal was not warranted because of the close chronological relationship between the defendants’ detentions on review and habeas decisions that various district court judges had entered in other cases upon finding such detentions unlawful. 505 N.W.2d at 739, 745. But the State fails to recognize that the holding in City of Jamestown was based upon the fact that the city had disregarded tire North Dakota Supreme Court’s decision in Stutlien. See City of Jamestown, 513 N.W.2d at 84-86. This actually weighs in favor of Rickerson’s argument that dismissal is an appropriate sanction.
The facts of this case are more like those in City of Jamestown than the facts in Cuchy or Stutlien. Here, despite decisions by both the Kansas Supreme Court in 2001 (Cuchy) and the Johnson County District Court in 2002 (Vaters), the mandatory 6-hour detention policy was enacted by the district court in 1990 and apparently remained consistently in effect and enforced until May 2010. It is difficult to find that this situation does not demonstrate an institutional noncompliance with and systematic disregard for prior court decisions in the same way as in City of Jamestown.
Rickerson argues that dismissal of his case “will send a message that illegal bond detentions are illegal thereby deterring these policies.” We agree. Although there is nothing in the record to demonstrate that other jurisdictions continue to enforce unlawful mandatoiy-detention policies like that at issue here, Johnson County did so for 8 years after Cuchy and even repromulgated the unlawful policy during that time, so we are not convinced that all Kansas courts have abandoned such practices. In fact, we know from the opinions provided below by Rickerson that at a minimum Jewell County had such a policy at least until 2004, Saline County until 2008, and Labette County until 2008, despite the fact that Cuchy was decided in early 2001. We hope dismissal of the case against Rickerson as a sanction will have a deterrent effect on any jurisdictions that have chosen either knowingly or negligently to disregard Supreme Court jurisprudence.
Although we have reviewed the remainder of Rickerson’s arguments on appeal and find them to lack merit, based on our ultimate ruling we need not address them here.
Reversed and remanded with directions to vacate Rickerson’s conviction and sentence and to dismiss the DUI charge. | [
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Hill, J.:
In this appeal, we must decide if one joint tenant, 10 days before his death, can effectively destroy a joint tenancy interest in a tract of real estate and replace it with a tenancy in common tenant by signing a quitclaim deed to himself and giving it to his lawyer for recording. Guided by the clearly manifested intent of the party making the conveyance here and because jointly owned property is freely transferable, we hold that the transfer of title was effective upon delivery of the deed to the grantor s lawyer for recording. We affirm the district court’s ruling.
Two cousins jointly owned 80 acres.
Richard F. Reicherter and his cousin, Douglas M. Reicherter, acquired an 80-acre farm in Marshall County in 1990, as joint tenants with rights of survivorship. Years later, when Richard was residing in a care facility, he signed a quitclaim deed on December 18, 2009, that conveyed his interest in the 80 acres to himself in an apparent attempt to sever the joint tenancy and create a tenancy in common. After signing, Richard gave the deed to his attorney, Rodney Symmonds, for recording. On December 22, 2009, Symmonds mailed Richard’s quitclaim deed along with a filing fee to the Marshall County Register of Deeds.
Then, Richard died on December 28, 2009. One day after his death, die Marshall County Register of Deeds recorded Richard’s quitclaim deed. Douglas Reicherter was unaware that Richard had executed and filed a quitclaim deed until after Richard’s death. There was no express agreement between Richard and Douglas preventing Richard from severing the joint tenancy.
Barbara J. McCauley was appointed executrix of Richard’s estate. Naming McCauley as the defendant, Douglas and his wife filed a quiet title action in Marshall County seeking title to the entire 80-acre tract. McCauley counterclaimed claiming a half ownership interest and sought partition of the farm. Douglas opposed this action.
Both sides sought summary judgment. Ruling that Richard clearly intended to sever the joint tenancy and he could convey his interest to himself unimpeded and could thus create a tenancy in common, the district court granted Executrix McCauley s motion and denied Douglas’ motion for summary judgment. The district court also held that the joint tenancy was severed when Richard, prior to his death, delivered the quitclaim deed to his attorney for filing. Later, the district court clarified that during the summary judgment hearing Douglas waived any argument that there was an oral agreement in which Douglas gave consideration for the joint tenancy to Richard in exchange for the same benefits and burdens from the land upon Richard’s death.
The issue
Douglas Reicherter contends the unilateral attempt at self-conveyance by Richard was ineffective in destroying the joint tenancy ownership they had in the 80 acres. In Douglas’ view, since the deed was not recorded until after Richard’s death, it did not affect his surviving ownership of tire entire tract as he had no prior notice of Richard’s intent to sever the joint tenancy. He asks us to reverse the district court and order tire court to quiet title to the 80 acres in his favor.
Executrix McCauley contends the joint tenancy to the tract was effectively severed and a tenancy in common was created when Richard signed the quitclaim deed to himself and then gave it to his lawyer for recording. In her view, Richard was not required to give notice to Douglas of his intent and recording the deed after Richard’s death did not nullify Richard’s intent of severing the joint tenancy. She asks us to affirm the district court.
Our rules of review
We are in the same position as the district court in deciding this case. Our rules concerning summary judgment are well established. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy judgment, the facts subject to the dispute must be material to the conclusive issues in tire case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
Because the material facts in this case are not in dispute, resolution of this appeal requires a review of the district court’s legal conclusions. An appellate court’s review of conclusions of law is unlimited. See Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004). Said in another way, where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).
Joint ownership of property in Kansas
Generally speaking, there are two ways to jointly own property in Kansas, either as tenants in common or as joint tenants with rights of survivorship. When considering the ownership of real estate, the law presumes a tenancy in common is created unless the deed or other conveyance creating the estate unequivocally conveys a joint tenancy to two or more persons or entities. K.S.A. 58-501. There is no question here that before Richard’s death, he and Douglas owned this 80-acre farm as joint tenants.
Before this appeal, it has been argued in other cases that a joint tenant could not unilaterally change ownership of property because of the joint tenancy. But that argument has been rejected by a panel of this court in Campbell v. Black, 17 Kan. App. 2d 799, 804, 844 P.2d 759 (1993). In a case where just prior to her death a woman changed the ownership of some joint tenancy accounts, the Campbell court held: “[A] joint tenancy may be terminated (1) by mutual agreement of die parties, (2) by course of conduct indicating tenancy in common, or (3) by operation of law upon destruction of one or more of the required unities (time, title, interest, and possession). [Citation omitted.]” 17 Kan. App. 2d at 804. This language was quoted with apparent approval by the Supreme Court in Nicholas v. Nicholas, 277 Kan. 171, 186, 83 P.3d 214 (2004), where the court said: “This approach is consistent with the modem trend of looking to the parties’ intent as the operative test of whether a joint tenancy has been severed rather than depending upon the traditional doctrine of the four unities.”
We have no doubt that Richard intended to sever the joint tenancy. At the summary judgment hearing, Douglas stipulated that the district court would not have to make a determination regarding Richard’s intent because Richard demonstrated a clear intent to sever the joint tenancy by signing the quitclaim deed and giving it to his lawyer. Given that Richard’s intent is not at issue, the remaining questions are whether self-conveyance is effective in Kansas and whether Richard’s delivery of the quitclaim deed to his attorney effectively severed the joint tenancy or whether the failure to record the deed until after Richard’s death thwarted Richard’s intent.
We address the question of self-conveyance.
No Kansas court has ruled on the issue of whether one joint tenant can unilaterally sever a joint tenancy by executing a quitclaim deed conveying his or her interest in the real estate to himself or herself as a tenant in common. For the three reasons given below, we hold that a joint tenant can self-convey and thus destroy a joint tenancy in this case where there are just two joint tenants.
First, under Kansas law, it is clear that any joint tenant may unilaterally sever his or her joint tenancy interest in real property and create a tenancy in common by conveying his or her interest to a third person. Hall v. Hamilton, 233 Kan. 880, 885, 667 P.2d 350 (1983). Had Richard conveyed his interests in this real estate to a third person the joint tenancy would have been changed to a tenancy in common with ownership of the tract held in common between that third party and Douglas upon delivery of the deed. We point this out to emphasize that whatever interest a joint owner has in real estate it is freely transferable, that is, it can be sold or given to someone else. There is no need for the party seeking transfer of ownership to first give notice to, or obtain the consent of, the remaining tenant to effectuate the conveyance.
Second, where the intent to create a joint tenancy is clearly manifested, a joint tenancy may be created by a transfer to persons as joint tenants from an owner or a joint owner to himself or herself and one or more persons as joint tenants. The Supreme Court ruled that a self-conveyance can create a joint tenancy. The all important factor is the clarity with which the grantor s intent is expressed at the time the transaction is initiated. Winsor v. Powell, 209 Kan. 292, 299, 497 P.2d 292 (1972). Then, in In re Estate of Lasater, 30 Kan. App. 2d 1021, 1023-25, 54 P.3d 511 (2002), this court noted that a decedent’s quitclaim deed created a joint ten-: ancy. Logically, we see no reason for a distinction between the method used to create or sever a joint tenancy. Just as a grantor can create a joint tenancy by unilaterally transferring ownership to himself or herself, so should a grantor be able to sever a joint tenancy through self-conveyance.
Third, other jurisdictions have found that unilateral self-conveyance severs a joint tenancy and have dispensed with the old requirements of deeding property to a straw man. We find their reasoning persuasive. See Riddle v. Harmon, 102 Cal. App. 3d 524, 162 Cal. Rptr. 530 (1980); Countrywide Funding Corp. v. Palmer, 589 So. 2d 994 (Fla. Dist. App. 1991); Minonk State Bk. v. Grassman, 103 Ill. App. 3d 1106, 432 N.E.2d 386 (1982); Hendrickson v. Minneapolis Fed. Sav. & Loan Assn., 281 Minn. 462, 161 N.W.2d 688 (1968); In re Knickerbocker, 912 P.2d 969 (Utah 1996); see In Re Estate of Johnson, 739 N.W.2d 493 (Iowa 2007); Taylor v. Canterbury, 92 P.3d 961 (Colo. 2004); Johnson v. MacIntyre, 356 Md. 471, 740 A.2d 599 (1999); Matter of Fuss, 151 Misc. 2d 689, 573 N.Y.S.2d 586 Sur. Ct. (1991).
This reasoning leads us to rule in favor of Richard’s estate. Upon effective delivery during the grantor’s life, a quitclaim deed by a joint tenant to himself or herself as a tenant in common effectively severs the joint tenancy and creates a tenancy in common. Obviously, because of the facts of this case, we limit this ruling to a case where there are just two joint tenants.
We consider the effect of the recording statute.
Douglas hangs his hat on one of the recording statutes. He ar gues that under K.S.A. 58-2223, the execution of the quitclaim deed creating the tenancy in common was not effective until December 29, 2009, the date filing in Marshall County. We are not convinced that the recording statute can be used to thwart Richard’s clear intent to sever the joint tenancy.
Douglas’ argument ignores well-settled law in Kansas that title to real estate vests at die time of delivery of die deed. To transfer title through a deed, the grantor must cause the deed to be effectively delivered during die grantor’s life. Agrelius v. Mohesky, 208 Kan. 790, 795, 494 P.2d 1095 (1972). Recording is not necessaiy to effectively deliver a deed. See Libel v. Corcoran, 203 Kan. 181, 185, 452 P.2d 832 (1969). When a deed that is duly executed and acknowledged is found in a tiiird-party’s possession, it is presumed that die grantor delivered die deed. Cole v. Hoefflin, 187 Kan. 66, 69, 354 P.2d 362 (1960). Conversely, the law presumes the grantor did not effectively deliver the deed when a deed is signed and acknowledged but the grantor retains control of the deed. See Cole, 187 Kan. at 69, 72-73; Johannes v. Idol, 39 Kan. App. 2d 595, 604, 181 P.3d 574 (2008). Here, Richard signed the deed and gave it to his attorney for filing. We see no other steps that Richard needed to take to effectively deliver the deed.
A brief review of the recording statutes is helpful at this point. K.S.A. 58-2221 provides: “Every instrument in writing that conveys: (a) Real estate; . . . (d) . . . may be recorded in the office of register of deeds of the county in which such real estate is situated.” Then, K.S.A. 58-2222 establishes that every instrument recorded shall “impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.” In turn, K.S.A. 58-2223, the statute relied upon by Douglas, states: “No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with tire register of deed for record.” (Emphasis added.)
Obviously, these recording statutes should be construed together as statutes in pari materia. Luthi v. Evans, 223 Kan. 622, 629, 576 P.2d 1064 (1978). The Luthi court concluded the legislature intended that the purpose of recording instruments of con veyance was to impart constructive notice to subsequent purchasers or mortgagees. 223 Kan. at 629. This is why the exception in K.S.A. 58-2223 is important. Clearly, according to this law, unrecorded deeds are effective for the parties to the deed.
Here, as the only party to the deed, the recording statute did not bar the conveyance of Richard’s interest as a joint tenant in the 80 acres to himself as tenant in common upon delivery of the deed to his attorney. Since the deed was effective upon delivery, then the joint tenancy was severed by his actions. Thus, the district court’s ruling on this point is correct. Richard had, indeed, severed the joint tenancy several days before his death.
We affirm the ruling of the district court in favor of the estate. | [
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Hill, J.:
In this appeal we focus on how a court can use its contempt powers to enforce its orders. The mother of two minors failed to obey a no-contact court order by visiting her children who were tire subjects of child in need of care petitions. As a result, the State accused her of indirect civil contempt of court. Civil contempt proceedings are remedial in nature, seeking the party’s compliance with the court’s orders. Here, the district court found her to be in contempt of court and simply sentenced her to serve 5 days in jail as punishment for violating the court’s order. Because the court gave the contemnor no way to purge herself of contempt, we hold that sentence to be wholly punitive. The court failed to give the contemnor “the keys to the jail.” The court had no authority to impose a criminal contempt sentence in a civil contempt proceeding. Therefore, we vacate the penalty.
If we view this action as an indirect criminal contempt of court proceeding, we must reverse the contempt finding because the contemnor was forced to testify against herself in violation of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights.
The case history reveals a violation of the court’s order.
In two child in need of care cases, the district court found each child in need of care and ordered them to remain in the custody of the Secretary of Social and Rehabilitation Services. The court ordered V.R., their mother, not to contact either child. This in- eluded such contact as written, verbal, face-to-face, email, or contact through a third party. Any visits V.R. intended to have with the children had to be supervised. Later, the court amended the order, telling V.R. to not go to the father s house, his place of employment, the children’s school, or the children’s resource home.
Following that, the State filed an affidavit and accusation in contempt against V.R., alleging that she had twice violated the order by having unsupervised contact with her children — first at Youth-ville and then later at their school. The State asked the court to find V.R. guilty of indirect civil contempt and to order that she “be punished by detention in the Sedgwick County Adult Detention Facility.” In turn, the court ordered V.R. to appeal' and show cause why she should not be punished for contempt.
V.R. was the only witness at the contempt hearing. At one point V.R.’s counsel objected upon the ground that she should not be required to testify against herself in violation of her Fifth Amendment privilege. The court overruled the objection and held this was a civil proceeding, and in such an inquiry, V.R. had no right against self-incrimination. After considering V.R.’s testimony, the district court ruled V.R. had, in both instances, violated its orders and found her in indirect civil contempt. The court ordered V.R. to serve 5 days in the county jail, noting:
“I don’t know how much this is going to help. It may not — it probably won’t help much at all. But we’ve had too many discussions during the course of this case saying you’ve got to stop doing tírese things and if you don’t stop doing them something’s going to happen. Well that’s today.”
The judge warned V.R. that he would start doubling the length of the jail term for each subsequent violation in which she was found in contempt. V.R. appeals.
This appeal is not moot.
The State argues this appeal is moot because the court has terminated V.R.’s parental rights to both children. We do not agree for several reasons.
First, we were told at oral argument that the termination order is the subject of a different appeal and therefore is not final. Fur ther, the status of the children is not material to the issues we must address. We are dealing with a contempt action. True, the disobedience of the court’s order arose from child in need of care cases but we are not determining the merits of the child in need of care decisions; we look only at the separate action of the contempt proceeding.
As a general rule, an appellate court does not decide moot questions. “An appeal will not be dismissed for mootness, unless it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties’ rights.” McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009).
We are not convinced that this case is moot. V.R. has been sentenced to serve 5 days in jail. That order has not been modified or withdrawn in any way and can be enforced once we return jurisdiction of this case to the district court. Further, the court ordered that any future unsupervised contact with her children would lead to doubling or even redoubling the length of her incarceration. It is conceivable that V.R. may try to visit with her children even though her parental rights have been terminated. V.R.’s rights are still being affected by this court order.
We will proceed with the appeal.
We review some fundamental points of the law of contempt.
Courts exercise contempt powers in order to maintain decorum in all court proceedings, punish those who show disrespect for the court or its orders, and enforce its judgments. Also, courts punish those acts, or failures to act, which obstruct the administration of justice. It has been said that the power of the courts to punish for contempt is one of the powers inherently belonging to the judiciary. It is necessary to the due exercise of the court function. See generally, 17 Am. Jur. 2d, Contempt §§ 1-3. As one federal court put it, the courts possess inherent power to impose silence, respect, and decorum in their presence and submission to their lawful mandates, and the courts are vested with power to initiate contempt proceedings to ensure that the judiciary is not utterly dependent upon the other branches of government to vindicate judicial authority. United States v. Neal, 101 F.3d 993, 996 (4th Cir. 1996).
This inherent authority has now been procedurally regulated in Kansas by the enactment of K.S.A. 20-1201 et seq. In fact, our Supreme Court has ruled, “If the district court imposes sanctions for contempt of court, the procedure under K.S.A. 20-1201 et seq. regulates that power. No inherent power to punish for contempt exists independent of K.S.A. 20-1201 et seq.” State v. Jenkins, 263 Kan. 351, 352, 950 P.2d 1338 (1997).
Our statute, K.S.A. 20-1202, sets out two major classes of contempt, direct or indirect contempt. Direct contempt is committed during the sitting of the court or before a judge at chambers. All other contempts are indirect. K.S.A. 20-1202(2). Clearly, in this case, we deal with indirect contempt, as V.R/s conduct did not occur in the presence of the judge.
Next, it is important to note two additional categories of contempt. They are denominated as civil and criminal contempt. They are distinguished by the intent of the penalty imposed and not necessarily the nature of the underlying legal or equitable action that the court is dealing with. In other words, a civil contempt proceeding may arise in a criminal case and a criminal contempt proceeding may arise in a civil case. Two questions are useful in making the distinction. Is the court seeking the enforcement of its orders? Is the court seeking to punish someone for disrespect or disobedience? If the former is true, then the answer is usually civil contempt; if it is the latter, then the contempt action is criminal.
The Kansas Supreme Court has defined civil contempt as “the failure to do something ordered by the court for the benefit or advantage of another party to the proceeding.” ’ [Citation omitted.]” Jenkins, 263 Kan. at 358. Civil contempt proceedings are remedial in nature and designed to advance the private right of a litigant won by court order. Any civil contempt penalty is intended to be coercive, and relief can be achieved only by compliance with the order. Any sentence imposed for a civil contempt violation must permit the contemnor to “ unlock the door of the . . . jail and discharge [himself or] herself by doing what [he or] she has previously failed to do/ [Citation omitted.]” Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372, 417-18, 197 P.3d 370 (2008).
In contrast, behavior held to be criminal contempt is “ ‘ “conduct directed against the dignity and authority of a court or a judge acting judicially, with punitive judgment to be imposed in vindication; its essence is that the conduct obstructs or tends to obstruct the administration of justice.” ’ [Citations omitted.]” Jenkins, 263 Kan. at 358.
Going further, the four subgroups of contempt are not mutually exclusive. Direct contempt of court can be criminal or civil in nature. For example, if a witness becomes belligerent, abusive, and combative to the extent that it disrupts the court proceeding, the court could, through application of its criminal contempt authority, seek to punish the witness for this bad behavior. In such an instance, the court could sentence the witness to a definite term of confinement in jail as punishment. On the other hand, if the witness refuses to testify and has no legal excuse or privilege not to testify, the court could seek to compel the witness to testify by the exercise of its civil contempt authority. In such cases, the court could then order the witness incarcerated in jail until the witness is willing to testify. But, in this civil contempt proceeding, the witness holds the key to the jail by expressing a willingness to comply with the court’s order and testify. The penalty distinguishes the class.
Similarly, instances of indirect contempt of court can be criminal or civil in nature. A court could punish the contemnor for disobedience of an order or, instead, seek compliance with the order of the court. If a penalty is imposed for disobedience, then the contempt is criminal in nature. If the object of the procedure is to coerce the contemnor into complying with a court’s order, then it is a civil contempt action. But we must emphasize that the procedure a court must follow for either criminal or civil indirect contempt of court is the same. See K.S.A. 20-1204a(d).
The procedures for indirect contempt of court must be observed.
For all indirect contempt of court actions, K.S.A. 20-1204a sets out the procedure that must be followed. First, a party may file a motion alleging an indirect contempt of court and thus seek the enforcement of a court order. If the motion is accompanied by an affidavit specifically setting out the facts that show an apparent violation of a court order, the court can issue a show-cause order directing the alleged contemnor to appear in court at a definite time and offer any defense to the allegations that the contemnor may wish to present. K.S.A. 20-1204a(a). The affidavit that must be filed is required to be a document given under oath and not merely acknowledged before a notary. See Meigs v. Black, 25 Kan. App. 2d 241, 243, 960 P.2d 770 (1998). Because of this, the court has something of evidentiary value to rely upon when issuing the show-cause order.
Next, the show-cause order and the affidavit must be served personally on the alleged contemnor. K.S.A. 20-1204a(b). At the date and time set in the order, the court may try the matter or continue the same as needed. If the court determines the person is guilty of contempt, such person shall be punished as the court shall direct. K.S.A. 20-1204a(c).
This was initiated as a civil contempt proceeding.
Following the procedure set out in K.S.A. 20-1204a, the State in this case filed an affidavit and accusation of indirect contempt of court, accusing V.R. of violating the district court’s order. As a result, the court issued a show-cause order directing V.R. to appear and show cause why she should not be “proceeded against for indirect civil contempt of Court.” This order gave notice to V.R. that the contempt proceeding was civil in nature.
The court assessed an improper penalty for civil contempt.
At this point, we want to stress that we make no comment about the finding that V.R. was in contempt of court. That issue is not before us if we view this as a civil contempt action. The evidence from the State’s affidavit obviously indicates that V.R. did initiate contact with her children on two occasions in violation of the court’s order. We do take issue with the 5-day jail sentence.
The record discloses that the judge was unsure of the penalty that could be imposed here. V.R.’s attorney argued that because the district court considered this a hearing for indirect civil contempt, it must give V.R. an opportunity to purge herself before ordering her incarcerated in county jail. The judge responded,
“I don’t think there is any remedy. I mean, if I had ordered her to sign a document and she hadn’t signed it, she could purge herself by signing it. But I don’t know of any way that she could purge it. I mean, I just don’t think that exists.”
Nevertheless, our law on this point is clear. A punitive jail sentence as punishment for violation of the district court’s order is available only for criminal contempt, not for indirect civil contempt. See In re Conservatorship of McRoy, 19 Kan. App. 2d 31, 34, 861 P.2d 1378 (1993). The 5-day jail sentence imposed here did not permit V.R. to purge her contempt. Nor did it, in any fashion, allow her to lessen her sentence through her conduct and unlock the door of the county jail. The court did not say, for example, that her sentence was suspended and could be reduced by a day for each week that she complied with the court’s order and, thus, obtain her liberty and purge her contempt by her obedient conduct. Thus, it follows that the jail sentence was entirely punitive and must be set aside. In Goetz v. Goetz, 181 Kan. 128, 138, 309 P.2d 655 (1957), the Supreme Court held:
“If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense. Such imprisonment operates, not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience.”
In McRoy, this court set aside as erroneous a 30-day jail sentence for indirect civil contempt which contained no provision for release if the contemnor complied with the court’s order. 19 Kan. App. 2d at 34. Earlier, in Carlson v. Carlson, 8 Kan. App. 2d 564, 568, 661 P.2d 833 (1983), this court vacated a 48-hour jail sentence for indirect civil contempt, that was to be served at 12 hours per day on four separate dates. The court found it to be wholly punitive because it contained no provision for the contemnor’s release. Similar to tire 30-day sentence in McRoy, the 5-day sentence here contains no provision for the contemnor’s release and is totally punitive. Like the sentence in McRoy, we must set this sentence aside as well.
If this is a criminal contempt, then the court failed to afford V.R. sufficient due process.
Interestingly, the State now contends that the contempt proceedings are to be regarded as criminal in nature and the district court properly imposed a punitive sanction for indirect criminal contempt. This change of position by the State cannot be ignored. Even if we view this as a criminal contempt action, we must likewise vacate the sentence because the court failed to afford V.R. due process.
First, the State’s accusation unequivocally asks the court to adjudge V.R. guilty of indirect civil contempt of court. Thus, the only notice given V.R. was the allegation of a civil contempt proceeding. But, we note the State did ask for V.R.’s incarceration in the accusation.
In our view, it is fundamentally unfair to tell the alleged contemnor this is a civil proceeding where he or she can offer a defense to his or her actions and, then when the contemnor appears, switch the proceeding to a criminal contempt case. Our review of the record persuades us that this contempt of court hearing, by its very nature, was to compel V.R. to abide by the district court’s order and was remedial in character. Its purpose was intended to coerce V.R. to comply with the visitation restrictions for the benefit of the children — who as children deemed in need of care were afforded protections by the district court that it felt were appropriate.
We acknowledge that a district court has the authority to find someone in indirect contempt of court and assess a criminal penalty. This is called indirect criminal contempt. But procedural safeguards must be observed. Even if we were to hold there was sufficient notice to V.R., the trial of V.R. was defective because the court forced V.R. to testify against herself.
While there are no Kansas appellate cases on this point, we are persuaded that the Illinois state courts have taken a reasonable approach to this subject. The case most pertinent to ours is In re Marriage of Betts, 200 Ill. App. 3d 26, 58, 558 N.E.2d 404 (1990), where the Illinois Supreme Court mandated all of the procedural safeguards usually associated with a criminal charge to be followed in an indirect criminal contempt proceeding:
“One charged with indirect criminal contempt is entitled to know the nature of the charge against him, to have it definitely and specifically set forth by citation or rule to show cause, and have an opportunity to answer. Also applicable to a respondent in an indirect criminal contempt proceeding are the privilege against self-incrimination, the presumption of innocence, and the right to be proved guilty beyond a reasonable doubt.” 200 Ill. App. 3d at 58.
This view was affirmed again by the Supreme Court of Illinois in People v. Lindsey, 199 Ill. 2d 460, 471, 771 N.E. 2d 399 (2002).
If we apply these principles to this case, we note the court did not protect V.R.’s right against self-incrimination. V.R. was required to testify over her objection and after she attempted to raise the privilege against self-incrimination. The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any [cjriminal [c]ase to be a witness against himself . . . .” Along the same line, Section 10 of the Kansas Constitution Bill of Rights states, “In all prosecutions, . . . [n]o person shall be a witness against himself.”
It is clear that the loss of liberty experienced by a contemnor serving a punitive sentence in an indirect criminal contempt proceeding is no different than the loss of liberty experienced by a person guilty of a statutory violation and serving a sentence for that conviction. Just because one conviction is for contempt and another is for violation of a statute, the penalty is identical. Again, we point out the nature of the contempt proceeding is determined by the penalty sought and not determined by the underlying action, such as the child in need of care case here. We therefore hold that a person charged with indirect criminal contempt has the right against self-incrimination. As a result, if we view this matter as indirect criminal contempt we must reverse and vacate the penalty because V.R. was forced to testify against herself.
Since V.R. had counsel and die accusation in contempt was specific and properly supported by an affidavit with evidentiary value and properly served, we are satisfied that the other safeguards set out in Betts have been satisfied here.
We understand the frustration expressed by the judge in this case. Indeed, courts have long pondered over what sentence to impose in a case such as this that would comply with the restrictions of the law of civil contempt. We cannot offer advisory opinions but will repeat tire law. Sentences for civil contempt must give contemnors a way through their conduct by which they can secure their release from jail. On the other hand, if the court simply wants to punish a contemnor, then the due process rights that attend any criminal charge should apply. These rights include:
• notice of charge and possible penalty;
• court-appointed counsel if indigent;
• right to trial;
• privilege against self-incrimination;
• right to confront witnesses and to compel testimony.
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Buser, J.:
A jury found Steven H. Weis guilty of two counts of reckless aggravated battery, K.S.A. 21-3414, and one count of criminal use of a weapon, K.S.A. 21-4201(a)(l). Steven appeals his convictions and sentencing. We affirm.
Factual and Procedural Background
This case arose from a disturbance between Steven and Anthony Napoleone, Thomas Nece, and Justin Lakkari in the early morning hours of Sunday, July 13, 2008. Anthony and Justin were friends. Steven had been dating Alicia Napoleone, Anthony’s sister and Thomas’ stepsister. At the time of this incident, Steven was living on a farm near Brookville. Alicia lived in Salina.
There was some evidence that Steven was not on friendly terms with Anthony, Thomas, and Justin. Specific disagreements, however, were not admitted at trial. These included that Anthony disliked Steven for introducing Alicia to methamphetamine use, that Steven had fought Justin after hitting Justin’s girlfriend, and that Steven had fought Thomas in a bar. The trial court reasoned that even if the four men “had 20 fights in the past or 20 arguments in the past,” “those matters were settled” and were not “really relevant as to what happened” on July 13, 2008.
On Saturday evening, July 12, 2008, Alicia went out drinking with Anthony, Thomas, Justin, and others. Alicia had met the group at a house belonging to Ryan and Chelsea Haden. The plan was to ride in the Hadens’ van and visit drinking establishments. At about 1:30 a.m., on Sunday, July 13, 2008, Alicia was still out partying with the group when Steven called to say he was on his way to Salina to spend the night with her.
After receiving Steven’s phone call, Alicia left the group and started walking towards her house. Steven soon arrived with his stepbrother, who was giving him a ride. The men picked up Alicia and drove to the Hadens’ house to retrieve Alicia’s vehicle, an older Jeep in poor mechanical condition. After Steven’s stepbrother left, Steven and Alicia discovered the Jeep would not start. By that time, the group which had been partying returned to the Hadens’ house. From this point on, the accounts of what occurred were dramatically different.
At trial, Alicia testified that she and Steven began walking to her house after one of the group approached the Jeep. Steven agreed, adding “[t]hat’s when I found out that her friends, family were there.” Steven said he told Alicia, “I was going to go, she can come if she wanted to,” and that Alicia had to run “around the Jeep to catch up with me.” Of note, Steven and Alicia specifically denied there was any argument or violence between them while they were at or around the Jeep.
Alicia testified that she soon noticed Anthony, Thomas, and Justin following them. According to Alicia, Anthony and Thomas started yelling at Steven, calling him “a bitch and a pussy,” and “telling him to come back and fight.” Alicia said she told Steven to keep walking.
Alicia said Anthony, Thomas, and Justin continued to follow them, and she “eventually turned around to kind of stop it, because it was just kind of monotonous.” She again told Steven to keep walking. Alicia testified that Anthony passed by her towards Steven with a look of anger on his face. Alicia tried to talk to Thomas and Justin, but they soon bolted past. Alicia testified she turned around and “all four of them . . . were all kind of fighting together.”
In his defense, Steven’s testimony substantially corroborated Alicia’s testimony. Steven said the followers were “shouting, hey, pussy, come back here and fight” and that he recognized Anthony’s voice among them. Steven said Alicia “stopped to talk to her brothers and she told me to keep walking.” He said he heard “somebody running up behind me” and that when he turned it was Anthony “about a foot away from me . . . and just yelling, leave his sister alone or he was going to lack my ass.” Steven testified Thomas ran up “waiving [sic] something shinny [sic]” and the “[n]ext thing I know Anthony is tackling me at my feet.” Steven said he did not swing at Anthony and that he was eventually able to free himself and run away.
Anthony, Thomas, Justin, and the other State’s witnesses provided a markedly different account. Anthony testified that after the group had returned to the couple’s house, he noticed Steven and Alicia arguing in the Jeep. Anthony said he then saw Steven “smack her in the face.” Anthony said he “took a deep breath and minded my own business for a second.”
Anthony stated that Steven then left the Jeep and that Alicia followed him. But, according to Anthony, Steven “smacked her again” and “turned back to me and said, what’s the matter, pussies, you not going to fight me tonight, something like that.” Anthony said this statement “pushed my button . . . [s]o, I started walking after him.” When asked why he had followed Steven, Anthony answered, “Because I was angry that he had hit my sister.”
Anthony testified that Steven and Alicia stopped together “and waited for me.” Anthony admitted, “I was screaming at him,” but he could not recall at trial what he had said. Anthony said Alicia was screaming as well, but at trial he had “no idea” what she said. His next memory was Steven taking a swing at him. Anthony said he ducked and fell to the ground. He was unable to feel his legs.
Thomas testified regarding the events in the early morning. He testified that he was entering the Hadens’ house when “someone said that Steven and Alicia were out front arguing and then Justin said that he . . . saw him hit her.” Thomas recalled that Steven and Justin “exchanged some words,” and then Steven “turned around. He said, what, you pussies don’t want to fight tonight.” At that point, Thomas said, Steven “backhanded” Alicia.
Thomas said he approached Steven and told him, “[H]ey, man, you can’t be doing that shit, what’s your problem.” Thomas said Steven replied, “[expletive deleted] you, whatever, I’ll do what I want, pussies, [you] can’t do anything to stop me, or something like that.” Thomas agreed with Anthony that Steven and Alicia stopped together, and he agreed with Alicia that it was Anthony who approached the couple because “that’s his blood sister, so he’s like, you know, I’ll go take care of this.” Soon after, according to Thomas, Steven “grabbed Anthony and hit him in the back, and then Anthony was laying [sic] on the ground.”
Justin also testified at trial. He was inside the Hadens’ house when he heard someone yell. He looked out and saw Steven and Alicia outside the Jeep. Justin said he “witnessed [Steven] either punch or slap [Alicia]. I don’t know exactly what it was. But he hit her.”
Justin said Steven and the other men were yelling at each other, but he could not recall in detail what each one said. He did remember that Anthony “said something about hitting my sister. He said, why don’t you do that over here, or something like that, in front of my face.”
Justin said Anthony and Thomas followed Steven and Alicia as they walked away, but “I couldn’t see very well. I didn’t have my glasses on.” Justin and his wife followed at some distance while the four individuals “kept yelling at each other.” Eventually, when “Anthony had gotten close to Steven,” Steven “kind of turned around and punched.” Justin said Anthony fell to the ground and did not get up.
Justin said he put Steven in a bear hug, that the two fell and wrestled on the ground, and that Steven managed to break loose and began hitting him. Justin said he was scratched and cut, but that he never saw a weapon. There was broken glass at the scene because Alicia threw beer bottles at Thomas and Justin during the fight.
The State also called Thomas’ wife, Lynnsey Nece, and Justin’s wife, Jennifer Ruston Lakkari, whose testimony was generally con sistent with that of Anthony, Thomas, and Justin. Lynnsey, who as the designated driver was not drinking that night, testified, “I heard Steven say, what, you don’t want to fight tonight, pussies. And then about that time it looked as if he had struck Alicia.” Anthony’s girlfriend, Shannon Jay, similarly agreed with the account given by Anthony, Thomas, and Justin.
In his defense, Steven called Jeremy Watkins, an investigator with the Salina Police Department, who interviewed Anthony at the hospital after the fight. Watkins said Anthony told him that “he didn’t like Steven and Aicia being together, and that he went out to talk to Aicia and try to get her to come back to the house and stay away from Steven.” Anthony did not tell Watkins that Steven had slapped Alicia.
Whatever triggered the fight, the tragic result was that Anthony’s spinal column was severed by the broken tip of a knife which lodged in his spine and paralyzed him from the rib cage down. Forensic testing matched the broken tip with a knife found at the scene. Additionally, Thomas suffered numerous stab wounds, and DNA taken from the remaining portion of the knife’s blade matched a DNA sample taken from Thomas.
At trial, Steven denied the possession or use of the knife. But when Steven called 911 after the fight, he reported that someone had been stabbed. And when interviewed by the police soon thereafter, Steven said he “didn’t know” if he had carried a knife. Steven told the police he “hit one of the men,” that “he might have had something in his hand,” and that he “might have had some keys in his hand.” At trial, however, Steven admitted that he had no keys during the fight.
The State charged Steven with aggravated battery against Anthony, Thomas, and Justin and with criminal use of a weapon. The juiy returned guilty verdicts on the lesser included offenses of reckless aggravated battery as to Anthony and Thomas, but acquitted Steven of aggravated battery with respect to Justin. The jury also returned a guilty verdict on the criminal use of a weapon charge. The district court sentenced Steven to 41 months’ imprisonment. He appeals.
Admission of K.S.A. 60-455 Evidence
Prior to trial, the State moved to admit evidence under K.S.A. 60-455 that Steven slapped Alicia in the presence of the group shortly before the stabbing. The State argued the slap was “necessary ... to prove motive” and “relevant to show the reason why the altercation began.” Additionally, the State argued that because Steven’s defense theory “involvefs] self-defense,’’together with the victims’ statements, “motive is a material issue in this case.”
The trial court conducted a K.S.A. 60-455 hearing. Steven’s counsel disputed the propriety of an instruction on motive, arguing the only possible motive shown by the challenged evidence was “the reason these three people attacked my client.” The trial court allowed the evidence, but it did not instruct the jury on motive. Rather, it instructed the jury: “Evidence has been admitted tending to prove that the defendant committed battery against Alicia Napoleone. This evidence may be considered solely for the purpose of explaining the events leading up to the altercation on July 13, 2008.”
In State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006), our Supreme Court directed: “Henceforth, admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60-455.” Steven asserts in passing that the trial court admitted “res gestae evidence . . . independent of K.S.A. 60-455.” Our general rule is to disregard passing assertions, State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010), but Steven’s assertion is contrary to the record.
The trial court did not admit the evidence Steven slapped Alicia independent of K.S.A. 60-455. The State moved for the admission of this evidence pursuant to that statute and at the hearing the trial judge announced, “I have before me today the State’s Motion to Admit Evidence pursuant to K.S.A. 60-455.” The trial court then carefully conducted a thorough analysis of the challenged evidence in accordance with the dictates of K.S.A. 60-455 and Gunby. Given this record, we see no reason to consider a supposed use of res gestae evidence independent of K.S.A. 60-455. We will consider Steven’s primary argument, however, that the trial court “did not correctly apply the K.S.A. 60-455 three-part test ... set out in Gunby.” (Emphasis added.)
Our Supreme Court has refined the test for the admissibility of evidence under K.S.A. 60-455 since Gunby.
“Determining whether evidence was properly admitted pursuant to K.S.A. GO-455 requires several steps. The appellate court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, the court must determine whether the fact has a legitimate and effective bearing on the decision in the case. The appellate court standard for reviewing materiality is de novo. The appellate court must also determine whether the materia] fact is disputed, i.e., the element or elements being considered must be substantially at issue in die case. The appellate court must also determine whether the evidence presented is relevant to prove the disputed material fact, i.e., whether it has any tendency in reason to prove that fact. The appellate couit reviews relevance — in particular, the probative element — of K.S.A. 60-455 evidence for abuse of discretion. The burden of proof is on the party alleging the discretion is abused. The court must also determine whether die probative value of the evidence outweighs the potential for producing undue prejudice. The appellate standard for reviewing this determination is abuse of discretion.” State v. Hollingsworth, 289 Kan. 1250, Syl. ¶ 6, 221 P.3d 1122 (2009).
Steven claims the evidence that he slapped Alicia was not in dispute, was not material, and was more prejudicial than probative. We address these claims in order.
Steven maintains the evidence was not disputed based solely on the testimony of Anthony, Thomas, and Justin that they “chose to pursue” Steven “after they either saw or heard that Steven had slapped Alicia.” Of course, this was their testimony. But Steven and Alicia both specifically denied that Steven slapped Alicia. If Steven did not slap Alicia, then Anthony, Thomas, and Justin chose to pursue Steven for another reason. Regardless, the challenged evidence was highly disputed. As detailed earlier, we may easily determine that the challenged evidence was in dispute.
We next consider whether the evidence was material — whether it had a legitimate and effective bearing on the decision in the case. Steven argues it did not because it “did not tend to prove any element of the crimes charged.” (Emphasis added.) Whether or not the evidence was material to the elements of the crimes, we believe it was very material to Steven’s claim of self-defense.
The self-defense instruction, which was patterned, in part, from PIK Crim. 3d 54.22, entitled “Initial Aggressor s Use of Force,” provides:
“A person who initially provokes the use of force against hiinself is not permitted to use force to defend himself unless the person reasonably believes that he is in present danger of death or great bodily harm, and he has used every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the other person or the person has in good faith has withdrawn from physical contact with the other person and indicates clearly to the other person that he desires to withdraw and stop the use of force, but the other person continues or resumes the use of force.” (Emphasis added.)
Steven does not challenge this instruction on appeal. Therefore, if the jury had decided the case based on self-defense, it would have had to consider whether Steven initially provoked the use of force against himself. Evidence that Steven slapped Alicia in the presence of her family members would certainly have been material to that finding. The slap could have been understood as an integral part of Steven's taunts to Anthony, Thomas, and Justin— a display of violent mastery over Alicia coupled with a mocking, verbal challenge to her male family members.
Steven denied the slap and the taunt, and Alicia supported his testimony. But whether Steven had slapped Alicia contemporaneously with his taunts to her family members was a question for tire jury. See State v. Hunt, 257 Kan. 388, 394, 894 P.2d 178 (1995). The evidence that Steven slapped Alicia was therefore material under K.S.A. 60-455. See Gunby, 282 Kan. 39, Syl. ¶ 3 (“The list of material facts in K.S.A. 60-455 is exemplary rather than exclusive.”); State v. Corchado, 188 Conn. 653, 668, 453 A.2d 427 (1982) (evidence that defendant had slapped manslaughter victim “was relevant because it clearly had a bearing on the existence of facts the jury were ultimately required to determine, i.e., on the issue of self-defense”).
The final step in the K.S.A. 60-455 analysis is to consider whether the evidence that Steven slapped Alicia was more prejudicial than probative. Steven denies the evidence was probative because “the witnesses could have been instructed to say that they were concerned about Alicia and thus, decided to follow the cou pie.” This argument seems to concede the probative nature of the evidence while proposing to recharacterize it to the jury in a watered-down fashion. For a trial court to order an eyewitness to testify not to perceived facts, but in a manner reformulated by the trial court seems fraught with peril. Moreover, to have instructed eyewitnesses to testify “they were concerned about Alicia” without informing the jury as to why, in fact, they were concerned about her would leave the jury without relevant and probative evidence surrounding the circumstances of this incident. It would also have unfairly and inaccurately withheld from the jury the visceral impact of Steven’s taunting as alleged by the State’s witnesses. If the jury was to decide self-defense as instructed, it could not have done so from manufactured and vague testimony.
In fact, Steven essentially concedes the probative nature of the challenged evidence in this case by stating: “For three days, the jury heard over ten times from several State witnesses that Steven had struck Alicia. With this type of testimony, the jury could have been misled that Steven was the initial aggressor because he first struck Anthony’s and [Thomas’] sister.” We agree the jury could have reached this conclusion, but that does not mean it would have been “misled.” The jury was not obliged to find, as Steven maintains on appeal, that “Anthony, [Thomas], and Justin were the initial aggressors.”
Evidence that Steven slapped Alicia was also not unfairly prejudicial. From the perspective of the State’s eyewitnesses, it was an integral part of the conflict, not an act gratuitously introduced to suggest, as Steven maintains on appeal, that he “without hesitating, battered people.” It was therefore distinguishable from the sort of propensity evidence which is more typically prejudicial than probative. See State v. Cook, 45 Kan. App. 2d 468, 474, 249 P.3d 454 (2011) (“[T]he only purpose of presenting evidence of his prior marijuana conviction was to show his propensity to possess marijuana.”).
For all of these reasons, the trial court did not err in admitting evidence, in accordance with K.S.A. 60-455, that Steven slapped Alicia immediately before the stabbing.
Jury Instructions
As mentioned earlier, the trial court provided a limiting instruction regarding how the jury should properly consider the K.SA. 60-455 evidence. The trial court also instructed the juiy oh self-defense. The trial court omitted the following sentence from the “Use of Force in Defense of Person” pattern instruction, PIK Crim. 3d 54.17: “When use of force is permitted as (self-defense)
. . . there is no requirement to retreat.” Additionally, the trial court also gave a non-PIK self-defense instruction based on State v. Bradford, 27 Kan. App. 2d 597, 601-02, 3 P.3d 104 (2000): “Self-defense requires intentional conduct. A charge of recklessness involves an unintentional act. Self-defense is not available as a defense against a charge of reckless conduct.”
Steven raises two challenges to the jury instructions. First, he claims error in the wording of the K.S.A. 60-455 limiting instruction. Steven now contends the trial court should have instructed the jury “that the battery evidence could be considered] for proving motive. If the jury had been properly instructed that the evidence could be used to show motive, then the jury could have considered Steve[n]’s motive.” Steven does not explain how the evidence he slapped Alicia showed his motive to commit the charged crimes or, if it did; how the jury’s use of the evidence for that purpose would have assisted him at trial. Steven’s counsel at the instructions conference, a different counsel than at the K.S.A. 60-455 hearing, did object to the omission of motive, although the basis was unclear.
Second, Steven complains that the self-defense instructions omitted the no-duty-to-retreat language. The State correctly notes that “[t]here is no explanation on the record” why the no-duty-to-retreat language was omitted. The record does show that the trial court and counsel “spent considerable time reviewing the jury instructions” off the record, so perhaps the omission was not inadvertent. In any event, neither party objected to the omission when the juiy instructions were submitted to the jury.
“When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the juiy.” State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).”An appellate court reviewing a [trial] court’s giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); see K.S.A. 22-3414(3). Clear error is shown where an appellate court is “firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” 288 Kan. at 451-52.
Critical to the application of this law in the present case is the fact that the juiy did not base its verdict on self-defense. The jury was instructed, as noted above, that self-defense did not apply to reckless conduct, and Steven does not appeal this instruction. Of course, jurors are presumed to follow their instructions. See State v. Reid, 286 Kan. 494, Syl. ¶ 18, 186 P.3d 713 (2008). Additionally, the prosecutor informed the jurors that if “you find that the elements of reckless aggravated] battery are met,” then “self-defense is not available. It is not a defense to reckless aggravated] battery.” Because the jury convicted Steven only on the lesser included offenses of reckless aggravated battery, and because the criminal use of a weapon conviction did not turn on the use of the knife but only on the possession or carrying the knife, the jury had no need to consider self-defense with regard to these two crimes.
Quite simply, the omission of motive from the K.S.A. 60-455 limiting instruction did not come into play. As Steven’s counsel observed at the K.S.A. 60-455 hearing, the “motive” suggested by such an instruction would be the motive of Anthony, Thomas, and Justin to fight Steven. That would go to the initial aggressor question, but since the jury convicted on reckless, not intentional, conduct, the materiality of such a motive was no longer at issue. Given tire jury’s verdict, Steven could not have been prejudiced by the omission.
Moreover, if the trial court had written the limiting instruction as Steven now urges, tire jurors might have inferred, as Steven does on appeal, that the motive in question was Steven’s motive to com mit the charged crimes. In State v. Carapezza, 286 Kan. 992, 998, 191 P.3d 256 (2008), for example, a district court allowed evidence of a defendant’s drug habit as res gestae evidence “without applying tire analysis required by K.S.A. 60-455.” Of course, that was improper, but our Supreme Court went on to consider under the statute whether the evidence was “probative of the motive for robbing” the victim. 286 Kan. at 999. Motive is one of the material facts listed in K.S.A. 60-455, and our Supreme Court thought the evidence “[providing a motive for Carapezza’s involvement establishes a material or logical connection to the inference that she participated in the crime.” 286 Kan. at 999.
In the present case, however, we see no reason why the jury should have considered evidence that Steven slapped Alicia as his motive for aggravated battery on Anthony, Thomas, or Justin. The risk in providing that instruction is that the jury could have inferred a motive of pure malice, which could very easily have become an inference of propensity — which is exactly the danger that a K.S.A. 60-455 hmiting instruction is designed to prevent. Under the unique facts of this case, we believe the trial court properly limited the jury’s consideration of the K.S.A. 60-455 evidence.
We do not hold that the K.S.A. 60-455 limiting instruction given in the present case was the best or sole way to instruct the jury. Notably, Steven does not appeal the language used in the instruction, only the omission of a reference to motive. Our holding is that, given the evidence before it, the trial court did not err by omitting motive.
The other aspect of the instructions Steven appeals, the omission of the no-duty-to-retreat language, also did not come into play. That language again applied only to self-defense, and self-defense did not apply to any of the crimes of conviction. Thus there was not a real possibility the jury would have rendered a different verdict if it was instructed as Steven suggests. A more likely result would have been juror confusion based on the tension between the no-duty-to-retreat language and the initial-aggressor instruction, which required the initial aggressor to have “used eveiy reasonable means to escape.”
Sufficiency of the Evidence
On appeal, Steven does not contest that Anthony suffered great bodily harm or that Thomas sustained bodily harm from a knife. Instead, Steven contends there was no substantial evidence to prove that he was the person who used a knife during the commission of either of the aggravated batteries. Similarly, Steven argues, with respect to the criminal use of a weapon conviction, “[n]ot one State’s witness could testily that he or she saw [him] possessing or carrying” tire knife.
Our standard of review provides:
“ ‘When tire sufficiency of tire evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
We begin our analysis with an obvious fact. Someone used, and therefore possessed or carried, the knife which injured Anthony and Thomas. There was testimony that Anthony was the first of the three men to reach Steven, and the evidence indicated he fell almost immediately when the tip of the knife severed his spinal column. There was also testimony that Steven struck Anthony in the back immediately preceding his fall. Thomas was apparently the next to reach Steven, and his blood was found on the blade of the knife. All of this evidence, viewed in the light most favorable to the prosecution, points to Steven’s use of the knife.
This inference is greatly strengthened by Steven’s inculpatory statements after the fight. Steven called 911 and said someone had been stabbed. When asked by the police if he had carried a knife, Steven said he did not know. More importantly, he said he might have had something in his hand when he hit one of the men, perhaps his keys. This admission, with an attempt at mitigation — the substitution of keys for a knife — shows a consciousness of guilt. See Appleby, 289 Kan. at 1061 (discussing law on “evidence to establish the defendant’s consciousness of guilt”). Viewed in the light most favorable to the prosecution, a rational factfinder could have found Steven guilty beyond a reasonable doubt of both crimes of conviction.
Offender Registration Pursuant to the Kansas Offender Registration Act
The trial court ordered Steven to register as an offender under K.S.A. 2010 Supp. 22-4902(a)(7) based on its finding that he had used a deadly weapon in the commission of reckless aggravated battery. This statute is part of the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Steven contends the district court’s finding violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution under Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), because a jury did not make the finding which resulted in an increased penalty for Steven’s crimes.
This is a new argument on appeal, but we will consider it because it alleges a violation of fundamental rights. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Our review is unlimited. See McComb v. State, 32 Kan. App. 2d 1037, 1041, 94 P.3d 715, rev. denied 278 Kan. 846 (2004).
Steven acknowledges State v. Chambers, 36 Kan. App. 2d 228, 239, 138 P.3d 405, rev. denied 282 Kan. 792 (2006), where this court held a district court could find a crime was sexually motivated for purposes of sex offender registration. The Chambers panel reasoned that because sex offender registration under KORA did not increase the maximum sentence, it did not engage the protections announced in Blakely and Apprendi. Steven contends, however, “[t]he Chambers decision was wrong because it narrowly interpreted the rule in Apprendi by holding that it should only be applied to increased sentences, not increased punishment.”
Chambers distinguished between sentences and punishment based on precedent of the Kansas Supreme Court. See 36 Kan. App. 2d at 237-39. This court is required to follow such precedent absent some indication our Supreme Court is departing from its previous position. State v. Jones, 44 Kan. App. 2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011).
Chambers also cited Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), where the United State Supreme Court held sex offender registration posted on the Internet was not punishment for ex post facto purposes. The Court reached this conclusion despite the “adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism.” 538 U.S. at 99. The Court reasoned the “purpose and principal effect of notification are to inform tire public for its own safety, not to humiliate the offender.” 538 U.S. at 99. Since Steven alleges he is subject to “punishment” based on “the certain stigma attached” to offender registration, we can rely on Smith here.
Steven provides no evidence of stigma. We are therefore left with whatever inferences we might make from the registration itself. We do not believe these inferences are sufficient to show Steven was deprived of his fundamental rights. If under Smith the stigma attached to sex offender registration is not punishment, the stigma Steven might be expected to suffer from offender registration is not punishment.
Steven also mentions he must perform certain duties connected with registration or face prosecution under K.S.A. 22-4903, and he also must pay a $20 fee whenever importing to a sheriffs office. See K.S.A. 2010 Supp. 22-4904(e). But Steven cites no authority holding these requirements are punishment, and he provides no reasoning supporting the conclusion. This is akin to waiving or abandoning an issue on appeal. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
If we were to consider the registration requirements, we would interpret them as part of the regulatory scheme and not as punishment. In Smith, for example, the “[widespread public access” caused by posting sex offender registration on the Internet was “necessary for the efficacy of the scheme.” 538 U.S. at 99. The “attendant humiliation” was “but a collateral consequence of a valid regulation.” 538 U.S. at 99.
Here as well, enforcement of the registration requirements is critical to the efficacy of the scheme. Steven’s exposure to further criminal liability under K.S.A. 22-4903 is not punishment for his crimes but a means to effect the intent behind registration, which is public safety. See State v. Cook, 286 Kan. 766, 774, 187 P.3d 1283 (2008).
We also believe the $20 fee is not punitive but a reasonable way to reimburse sheriffs’ offices for services provided in the regulatory scheme. See K.S.A. 2010 Supp. 22-4904(e) (“All funds retained by the sheriff . . . shall be credited to a special fund . . . which shall be used solely for law enforcement and criminal prosecution . . . and which shall not be used as a source of revenue to reduce the amount of funding otherwise made available to the sheriffs office.”); State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006) (characterizing BIDS fees as “recoupment” and “not fines or, indeed, any part of the punishment or sanction”).
Finally, subsequent to briefing and oral argument in this case, in State v. Unrein, 47 Kan. App. 2d 366, Syl., 274 P.3d 691 (2012), our court specifically rejected legal arguments similar to those raised by Steven in the present case. In short, Unrein is dispositive of this issue.
The stigma Steven might expect to suffer from registration is not an increase in sentence or punishment but a collateral consequence of his registration as an offender. Accordingly, we do not believe the trial court’s factual finding violated Blakely and Apprendi. Steven has not shown he was deprived of his fundamental constitutional rights.
Cumulative Error
Finally, Steven contends he was deprived of a fair trial by cumulative error. Since we have not found error, we do not find cumulative error. See State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). We also conclude based on the strength of the evidence that any error which might have occurred did not deprive Steven of a fair trial. See State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010).
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Leben, J.:
A drivers license may be suspended when the driver fails a breath test for alcohol so long as the testing procedures substantially complied with the directives of the Kansas Department of Health and Environment. Gary Bolton appeals the suspension of his license based on the contention that because he wears dentures — that were left in his mouth for the breath test— the officer didn’t follow the testing protocol that prohibits the “oral intake of anything” for 20 minutes before the test.
But intake is the act of taking something in, and Bolton’s dentures were in his mouth well before the 20-minute observation period that precedes a breath test. See American Heritage Dictionary of the English Language 911 (5th ed. 2011) (defining intake as “[t]he act of taking in”). Moreover, all that’s required is substantial compliance with tire testing procedures. See K.S.A. 2010 Supp. 8-1020(h)(2)(F). Officers don’t have to have people remove their dentures before performing a breath test for alcohol, so we affirm the suspension of Bolton’s driver’s license.
Bolton’s case began after his 2008 DUI arrest. An officer asked him to take a breath test for alcohol on the Intoxilyzer 8000; Bolton agreed. The officer testified that he inspected Bolton’s mouth, didn’t see anything unusual, and asked Bolton whether he had anything in his mouth. According to the officer, Bolton said no. The officer didn’t ask about dentures, though Bolton testified that he was wearing removable dentures at the time. The officer kept Bolton in his presence for an observation period (which must be at least 20 minutes but in this case went for 22 minutes), during which the officer didn’t see Bolton put anything in his mouth. Bolton then blew into the machine, and it recorded a blood-alcohol content of .246, well over the legal limit of .08. See K.S.A. 2008 Supp. 8-1567(a)(2).
After an administrative hearing, the Kansas Department of Revenue affirmed the suspension of Bolton’s driver’s license based on the test failure. Bolton appealed to the district court, which hears cases like this independently based on evidence presented to the court. See K.S.A. 2010 Supp. 8-1020(p). The district court concluded that the officer had substantially complied with testing standards, and the court affirmed the license suspension. No facts related to the substantial-compliance issue are disputed, so we must make an independent determination of that issue on appeal, without any required deference to tire district court. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008).
The legislature has provided for driver’s license suspensions when a driver fails a breath test and the testing has been done in accordance with procedures established by the Kansas Department of Health and Environment. That agency has adopted an administrative regulation requiring that those who operate the testing equipment follow a standard operating procedure. See K.A.R. 28-32-9(b)(4). One of the challenges a driver may raise in appealing a license suspension is whether “the testing procedures substantially complied with” these procedures. K.S.A. 2010 Supp. 8-1020(h)(2)(F). Our court has said that to demonstrate lack of substantial compliance, the driver must show “a violation of the . . . testing procedures that strikes at the purpose for the protocol and casts doubt upon the reliability of the subsequent test results.” Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, Syl. ¶ 4, 200 P.3d 496, rev. denied 289 Kan. 1279 (2009).
The testing protocol provided by the Kansas Department of Health and Environment requires that the machine operator “[k]eep the subject in [his or her] immediate presence and deprive the subject of alcohol for 20 minutes immediately preceding the test.” In addition, the agency supplies an operator s manual for the Intoxilyzer 8000, and it includes this directive: “Do not allow subject to eat, drink, smoke, or chew gum, or to have oral intake of anything” during the 20-minute deprivation period.
Bolton argues that letting him blow into the machine with dentures in his mouth violated the directive not to let him “have oral intake of anything.” But it certainly did not do so under the ordinary usage of the word intake: the dentures were already in Bolton’s mouth, and he did not take them in during the 22 minutes the officer observed him before the test. Nor has Bolton provided any evidence that having dentures in one’s mouth affects the breath-test result in any way.
The only evidence supporting Bolton’s position is the officer’s testimony that had he known Bolton had removable dentures in his mouth, the officer would have asked him to take them out before the test. But tire officer said he would have done this “just to be safe and avoid issues down the road,” not because anyone had trained him to do so.
The officer observed Bolton for more than 20 minutes, and Bolton didn’t take anything into his mouth during that period. The officer substantially complied with testing procedures, even though Bolton wasn’t asked to remove his dentures.
We conclude that an officer need not ask a driver to remove his or her dentures to comply with the established testing procedures. We note that all of the published appellate opinions we have been able to locate on this issue have come to the same conclusion. See Schofield v. State, 867 So. 2d 446, 448 (Fla. Dist. App. 2004); People v. Witt, 258 Ill. App. 3d 124, 126-27, 630 N.E.2d 156 (1994); Farr v. Director of Revenue, State of Mo., 914 S.W.2d 38, 39-40 (Mo. App. 1996); State v. Cook, 9 S.W.3d 98, 101 (Tenn. 1999). Bolton did not present evidence that the presence of den tures would have affected the test result; thus, this case is not decided based upon a fact-finder s choice between competing expert witnesses. Cf. Bruno v. Iowa Dept. of Transp., 603 N.W.2d 596, 597-98 (Iowa 1999) (affirming license suspension based on fact-finder s acceptance of expert testimony that dentures had no effect on test results over the testimony of competing expert).
The judgment of the district court is affirmed. | [
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Leben, J.:
In 2007, Waddell & Reed fired Charles Deeds from his position as a sales marketing executive. A year later, Deeds filed an administrative claim (still pending) under the Kansas Wage Payment Act seeking more than $1 million in commissions he said he had earned that hadn’t been paid to him. In 2009, Deeds sued Waddell & Reed, alleging that it had fired him in retaliation for exercising his rights under the Kansas Wage Payment Act.
But a person can’t be fired in retaliation for exercising rights under the Kansas Wage Payment Act unless the employee has given some indication that he or she is acting under its provisions. Here, Deeds complained about changes in the compensation system but was personally unaware of the Kansas Wage Payment Act and never suggested he was making a claim under its provisions. The equivocal statements Deeds made to his employer are not enough to support a lawsuit alleging that he was fired for exercising rights under the Kansas Wage Payment Act.
Deeds attempts to create other exceptions to the Kansas employment-at-will rule, under which the employer usually can fire an employee at any time for any reason. These attempts fail because Deeds has not cited a clear Kansas public policy to support his position, a requirement for an exception to be made. Deeds also attempts to use the equitable claim of unjust enrichment to proceed in court on his claim for commissions — arguing that Wad-dell & Reed received an unfair benefit by retaining the commissions, so Deeds should be compensated — but that is contrary to the longstanding rule that an equitable claim is not available when a legal remedy exists. Since Deeds is seeking the same recoveiy in his administrative claim under the Kansas Wage Payment Act, his equitable claim fails. The district court granted summary judgment to Waddell & Reed, and we find that its judgment was proper.
Factual Background
Waddell & Reed hired Charles Deeds as vice president of marketing and client service for the Southeast region in 1998. There was no employment contract that specified the duration of Deeds’ employment, and the parties agree that Deeds was an at-will employee of Waddell & Reed, so tire company was free to end Deeds’ employment at any time. Deeds started with a base salary of $77,000, plus commissions based on sales production and ongoing client servicing. The commissions for selling new accounts were 20 percent of revenues in the first year, 10 percent in the second year, 5 percent in the third and fourth years, and 2.5 percent for each year following, which was termed a “trailer” commission. The commission was capped at $50,000 per account per year. The parties disagree about whether Deeds still must be employed by Waddell 6 Reed to earn the trailer commission.
Waddell & Reed changed the commission schedule effective July 1, 2005. The new schedule phased out the trailer commission so that it no longer would be paid after July 1,2007. Deeds testified that he believed he had earned these commissions at the time of sale and would be paid these commissions every year as long as the account remained with Waddell & Reed.
Deeds complained about the 2005 commission change to Wad-dell & Reed’s management at least five times. Deeds first complained to Nikki Newton, his supervisor, about what he perceived to be the retroactive nature of the change; Deeds felt that Waddell & Reed was changing an existing compensation agreement. Later in 2005, Deeds complained to Newton’s supervisor, John Sundeen, and said he didn’t believe “it was right” to change the commission structure. Deeds complained to Sundeen and Newton again in 2006. Later, Deeds admitted he didn’t know what the law was under the Kansas Wage Payment Act at the time of these complaints. When Newton asked Deeds what he wanted, Deeds answered, “A fair compensation plan or return of those trailer commissions.” In early 2007, Deeds said Newton told him he would take Deeds’ request to management and get back to him.
Waddell & Reed fired Deeds on April 9, 2007. Newton told Deeds that Waddell & Reed decided not to change the commission schedule, so the company terminated Deeds’ employment because management knew Deeds wasn’t going to be happy about the decision. Newton assumed Deeds’ largest account and received its commissions. About a year after Deeds was fired, he filed a wage claim under the Kansas Wage Payment Act with the Kansas Department of Labor for more than $1 million. In 2009, a hearing officer denied Deeds’ wage claim. An administrative review of the hearing officer’s order was pending as of July 2010.
In 2009, Deeds brought claims against Waddell & Reed under four theories related to his termination and commissions: retaliatory discharge, wrongful discharge, prevention, and unjust enrichment. The district court granted Waddell & Reed’s motion for summary judgment August 2, 2010. Deeds has appealed to this court.
Analysis
I. Deeds Has Not Established Factual Support for a Retaliatory-Discharge Claim under the Kansas Wage Payment Act.
Deeds’ first legal claim is a common-law claim regarding his discharge from Waddell & Reed that he alleges came in retaliation for exercising his rights under the Kansas Wage Payment Act, K.S.A. 44-313 et seq. The district court granted summary judgment to Waddell & Reed because no Kansas appellate court had recognized a retaliatory-discharge claim related to the exercise of Kansas Wage Payment Act rights. Rut the Kansas Supreme Court recognized that cause of action in Campbell v. Husky Hogs, 292 Kan. 225, Syl. ¶ 1, 255 P.3d 1 (2011). So the question before us is whether Deeds has provided sufficient factual support to malee such a claim.
We first briefly review the rules we must apply to determine whether Deeds has presented a sufficient claim. Questions of law, “including those at the heart of summary judgment decisions,” are subject to unlimited review on appeal. Thomas v. Board of Shawnee County Comm’rs, 293 Kan. 208, 221, 262 P.3d 336 (2011). Summary judgment is appropriate when there is no genuine issue as to any material fact and when a party cannot prevail as a matter of law even when the court, as required, looks at all facts and inferences that may be reasonably drawn from the evidence in the party’s favor. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to prevent summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). On appeal, the same rules apply. So this court looks at the evidence in a light favorable to Deeds and requires Deeds to come forward with evidence to establish a dispute as to a material fact. Summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence, 291 Kan. at 768, but a party can’t avoid summary judgment on the mere hope that something may develop later at trial. U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 559, 205 P.3d 1245 (2009).
Let’s start by considering what facts have been established, keeping in mind that we must take the facts in the light most favorable to Deeds. Deeds complained at least five times about the change in the commission schedule that phased out the annual 2.5 percent trailer commission for accounts sold before July 1, 2005. Deeds said that Waddell & Reed had broken its contractual agreement with him, though he never suggested a violation of the Kansas Wage Payment Act since he had no knowledge of its provisions until much later. At one point, when Deeds’ supervisor asked what Deeds wanted, Deeds replied, “A fair compensation plan or return of those trailer commissions.”
Eventually, Waddell & Reed chose to fire Deeds. According to Deeds, his supervisor told him, “Chuck, I’ve taken your compensation complaint to management. They have determined not to respond. They know because they’re — they—they have determined because you will not be happy [with] their response, that we will — we are going to terminate your employment today.” In sum, Deeds was fired because he complained about changes to the terms of his compensation, and his complaints included a claim that Waddell & Reed had breached its contractual obligation to him. But he also told his employer — before he was fired — that he would be satisfied either with a “fair compensation plan” or a return to what he understood was the former contractual agreement.
So has Deeds stated a claim for retaliatory discharge? The essence of a retaliatory-discharge claim is that the employee has been fired contrary to a recognized state public policy. Otherwise, the employment-at-will doctrine controls, and under it an employee may be fired at any time for any reason unless a contract says otherwise. Campbell, 292 Kan. at 227; Goodman v. Wesley Med. Center, 276 Kan. 586, Syl. ¶ 1, 78 P.3d 817 (2003). The Campbell case must be the starting point for our analysis — it is the case recognizing a retaliatory-discharge claim where necessary to protect rights provided by the Kansas Wage Payment Act.
We start with the court’s statement of the rule it adopted in Campbell: “Kansas law recognizes the tort of retaliatory discharge when an employee is terminated for filing a wage claim under the Kansas Wage Payment Act.” (Emphasis added.) 292 Kan. 225, Syl. ¶ 1. As stated in the court’s syllabus paragraph, this claim protects an employee who is fired for filing a wage claim, something that Deeds hadn’t even contemplated when he was fired. If that’s the extent to which this cause of action exists in Kansas, Deeds’ case is an easy one to resolve: He can’t bring this claim because he hadn’t filed a claim.
There is some support for resolving Deeds’ claim that way. The Kansas Supreme Court is required to prepare a syllabus that tells “the points decided in the case,” K.S.A. 20-111, and the court faithfully attempts to state its holdings in the syllabus paragraphs. See State v. Patton, 287 Kan. 200, 218, 195 P.3d 753 (2008). The Kansas Court of Appeals is, of course, bound by the holdings of our Supreme Court. State v. Barajas, 43 Kan. App. 2d 639, 649, 230 P.3d 784 (2010). So one could argue that we may not recognize a retaliatory-discharge claim for the exercise of rights under the Kansas Wage Payment Act beyond what has been recognized in the Campbell opinion’s syllabus paragraph, which recognized the right only when the employee had filed a claim first.
But such a reading of Campbell is too narrow. After all, the court in Campbell had no cause to address whether such a claim might be recognized before a written wage claim was filed because Campbell alleged that he was fired 1 day after the Kansas Department of Labor had acknowledged receiving his claim. 292 Kan. at 226. We therefore must determine whether Kansas law recognizes a retaliatory-discharge claim at some point before a claim is filed under the Kansas Wage Payment Act.
Two principles set out by the Kansas Supreme Court guide us here. First, the public policy justifying an exception to the normal employment-at-will rule must be so clear that its existence is not subject to any substantial doubt. Campbell, 292 Kan. at 230. Second, in each situation where the public-policy basis for the exception has been a statutory right, the court has noted that it is the exercise of that right that triggers the protection of a retaliatory-discharge claim. Consider Hysten v. Burlington Northern Santa Fe Ry. Co., 277 Kan. 551, 85 P.3d 1183 (2004), in which the court recognized a retaliatory-discharge claim when an employee exercised rights under the Federal Employers Liability Act (FELA). The court emphasized that the public policy at issue was based on the worker’s use of statutory rights: “Regardless of whether FELA or the Kansas Workers Compensation Act supplies the framework to support an injured worker’s pursuit of recovery, the public policy underlying the framework would be undermined if the worker could be fired/or the exercise of his or her statutory right.” (Emphasis added.) 277 Kan. at 556-57; accord Campbell, 292 Kan. at 234 (finding a retaliatory-discharge claim “necessary [to carry out public policy] when an employer fires a worker who seeks to exercise [Kansas Wage Payment Act] rights by filing a wage claim” [emphasis added]).
We find additional help in determining when a retaliatory-discharge claim might exist before a wage-payment claim has been filed in a recent United States Supreme Court decision, Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S. Ct. 1325, 179 L. Ed. 2d 379 (2011). In Kasten, an employee brought a retaliatory-discharge claim based on the assertion that the employer had fired him for making a claim under the federal Fair Labor Standards Act. Unlike the Kansas Wage Payment Act, the Fair Labor Standards Act contains a statutory prohibition on employer retaliation against an employee who has “filed any complaint” under the Act. See 29 U.S.C. § 215(a)(3) (2006). But the Kasten Court concluded that the statutory policy could be carried out only if oral complaints were considered sufficient to trigger the anti-retaliation provision. 563 U.S. at 10-16. The Court concluded that either an oral or written complaint could be sufficient, but “[t]o fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” 563 U.S. at 14.
That standard seems a fair one in our situation too. An oral complaint should be sufficient, but only if the complaint is clear enough that the employer would understand that the employee is asserting rights protected by the statute (here, the Kansas Wage Payment Act). For it is the exercise of those rights that leads to recognition of tire retaliatory-discharge claim, and application of the public-policy exception should be so clear that its existence is not subject to any substantial doubt.
Under this standard, Deeds has not set out a valid retaliatory-discharge claim. He was unaware of the Kansas Wage Payment Act and made no attempt to claim its protection, let alone notify Wad-dell & Reed of such a claim before he was fired. Moreover, the statements he made to his employer were equivocal with regard to a potential claim under the Kansas Wage Payment Act: while he complained about tire change in the terms of compensation, he said that he could be satisfied either with return of the prior terms or some “fair compensation plan.” The latter option does not suggest a claim under the Kansas Wage Payment Act for specific wages due under his employment agreement.
Deeds argues that he can have a valid retaliatory-discharge claim — even without knowing of the Kansas Wage Payment Act or taking any steps toward asserting a claim under that Act. In support of this argument, he cites to three Kansas cases considering retaliatoiy-discharge claims in the workers-compensation context: Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988); Chrisman v. Philips Industries, Inc., 242 Kan. 772, 751 P.2d 140 (1988); and Pilcher v. Board of Wyandotte County Comm’rs, 14 Kan. App. 2d 206, 787 P.2d 1204, rev. denied 246 Kan. 768 (1990). We do not find these cases persuasive in our situation — considering when an employee has a retaliatory-discharge claim for having asserted rights under the Kansas Wage Payment Act — in part because the statutory provisions under which workers-compensation claims are made differ significantly from the provisions of the Kansas Wage Payment Act.
But in both workers-compensaüon and wage-payment disputes, the applicable statutes provide protection to the employee at all times: an injured worker is entitled to certain benefits, and employees are entitled to prompt wage payment. And the notice that an employee gives the employer is essential in claiming these protections. Employers must provide medical treatment to injured employees, and employees have a right to that treatment — provided that the employee provides notice to the employer of the work-related injuiy within a short time period after the accident. See K.S.A. 2011 Supp. 44-520 (generally requiring notice within 20 days from the date medical treatment is sought) (effective May 15, 2011); K.S.A. 44-520 (generally requiring notice within 10 days after date of injuiy) (provision in effect before May 15,2011). With that early notice, an employee has affirmatively sought the protection of the workers-compensation statute. In Coleman, the court noted that medical treatment had been provided by the employer to the employee, indicating that at least some act had been taken by the employee to gain the statute’s protection (or at least to accept benefits provided under the statute’s provisions). 242 Kan. at 806. In Chrisman, the employee notified the employer that he had suffered an injury and that it had been sustained doing tasks at work. 242 Kan. at 773. Thus, in each of these cases, the employee had provided an initial notice that an employer would reasonably understand as a claim for the protection of the workers-compensation statutes. The Pilcher opinion does not tell us whether the employee had notified die employer that she claimed her fall on the stairs outside the building where she worked was work-related, nor does it tell us whether she had requested or received any employer-provided medical treatment.
There is language in Pilcher stating that it is “wrongful to terminate an employee because of his or her absence due to a work-related injuiy.” 14 Kan. App. 2d at 215. As support for that conclusion, the court cited Coleman, a case in which the employer had provided medical treatment to the employee and thus had awareness of a work-related injury and the employee’s request for medical treatment. Since the Pilcher opinion does not tell us whether the employee had provided notice of the injury to the employer or whether the employee had requested medical treatment from the employer, we find it of no help in determining the question before us — what sort of notice of a potential claim must be made before an employee may legitimately allege a retaliatoiy discharge for exercising his or her rights under the Kansas Wage Payment Act.
Deeds also cites to a statement from Campbell in which the court said that a retaliatory-discharge claim exists “when an injured worker is terminated for exercising rights under the Kansas Workers Compensation Act” and that recognition of a similar cause of action “is necessary when an employer fires a worker who seeks to exercise [Kansas Wage Payment Act] rights by filing a wage claim.” 292 Kan. at 234. Deeds claims that he was “exercising rights” under the Kansas Wage Payment Act and thus should have a claim under the Campbell language.
But Deeds’ statements were too equivocal to place a reasonable employer on notice that Deeds was making some claim under the Kansas Wage Payment Act or that he intended to do so. Without some clear indication that Deeds was invoking any of the protections provided under the Kansas Wage Payment Act, there can be no claim against the employer for retaliation in response to the employee’s exercise of his rights under that statute. See Chrisman, 242 Kan. 772, Syl. ¶ 2; Koopman v. Water Dist. No. 1 of Johnson Co., 972 F.2d 1160, 1164 (10th Cir. 1992).
The district court granted summary judgment to Waddell & Reed because no appellate court had yet recognized a retaliatory-discharge claim based on an employee’s exercise of rights under the Kansas Wage Payment Act. In this regard, the district court’s decision was proven wrong when that cause of action was recognized in Campbell. Even so, the district court’s ultimate result was correct because Deeds had not provided evidence that he had made a complaint to his employer that would reasonably be understood as an assertion of rights under the Kansas Wage Payment Act and a claim for the protections provided by that Act. When the result is correct, even though the reasons given by the district court were not, we should still affirm the court’s ruling. See In re Marriage of Bradley, 282 Kan. 1, 8, 137 P.3d 1030 (2006). We do so here.
II. Deeds Has Not Established a Case for Recognizing Either of Two New Causes of Action.
Deeds has also argued for the establishment of two new causes of action. First, he argues that we should declare that an employer cannot fire an employee to avoid paying a commission that has already been earned. Second, he argues that an employer cannot fire an employee to prevent the employee from earning additional commissions. We once again review the matter independently to determine whether there is a valid legal claim corresponding to Deeds’ allegations and whether he has provided sufficient factual support for his claim to withstand a summary-judgment motion. Under these standards, Deeds has not established a valid claim on either theory.
In both cases, Deeds contends that Kansas public policy supports the existence of tírese causes of action. But the Kansas Supreme Court has consistently emphasized, as it reiterated in Campbell, that the public policy must be “clearly declared” by the state constitution, a state statute, or court decision, and that the policy must be so definite that its existence isn’t subject to substantial doubt. 292 Kan. at 230. If this were not the case, the employment-at-will rule that lies at the heart of Kansas employment law would become the exception, not the rule.
Deeds has not cited any Kansas constitutional provision, statute, or court opinion noting a strong public policy forbidding the firing of an employee for the purpose of avoiding the payment of commissions already earned. We do not believe such a policy exists under Kansas law. If the commissions truly have been earned, the employee could make a claim for them either under the Kansas Wage Payment Act or in a breach-of-contract action. But by firing the employee, the employer would be able to make sure that its exposure was limited only to what it was already legally obligated to pay. One of the benefits of the employment-at-will rule is that an employer can downsize — including the firing of employees to cut payroll and expenses — when business conditions require it, which can allow the company to remain viable until expansion is again possible.
The only case Deeds cites in support of this cause of action is Gould v. Maryland Sound Industries, Inc., 31 Cal. App. 4th 1137, 1148, 37 Cal. Rptr. 2d 718 (1995). In that case, the California Court of Appeal held that an action could not be dismissed for an employee’s failure to state a claim when the employee claimed that he had been fired so his employer could avoid paying him his already earned commissions. The court noted that under its state wage-payment law, the amounts, if already earned, would still be owed, so the motivation attributed to the employer “seems illogical.” 31 Cal. App. 4th at 1148 n.3. Yet it held that the action could not be dismissed altogether because the employee had alleged that the employer had terminated him for that specific purpose, which the California court held contrary to the state’s public policy. 31 Cal. App. 4th at 1148.
We are unable to agree with the Gould court’s reasoning, at least under Kansas law. The employment-at-will rule should be discarded only when some clear Kansas public policy requires it, and none does in this situation. If the commissions have already been earned, they are still owed to the employee and may be recovered by him. There is no need to override the normal employment-at-will rule in this situation.
We also note that Deeds himself testified that he didn’t believe Waddell & Reed terminated him to avoid paying him earned commissions. He answered “no” when asked whether he was “claiming that the motivation for the termination of [his] employment was an attempt to try to avoid paying [him] earned commissions.”
Deeds’ second attempt to create a cause of action comes under what’s commonly referred to as the doctrine of prevention. Under this doctrine, one party to a contract, Party A, can’t escape liability or otherwise derive any benefit by preventing the other party, Party B, from carrying out a “condition precedent” — an activity that must be performed to trigger Party A’s contractual duty to Party B. Morton Bldgs., Inc. v. Department of Human Resources, 10 Kan. App. 2d 197, 201, 695 P.2d 450, rev. denied 237 Kan. 887 (1985). Deeds contends that Kansas law should therefore prevent an employer from firing an employee for the puipose of keeping tire employee from earning additional commissions.
Once again, Deeds ignores the policy behind the employment-at-will rule. That rule allows an employer to lessen the compensation it will owe by firing workers or by changing the terms for future compensation unless the employer has entered into an employment contract that requires otherwise.
Deeds has not provided either factual or legal support for the recognition of these new causes of action.
III. Deeds’ Unjust-Enrichment Claim Is Preempted by his Wage Claim.
Deeds makes a final claim for unjust enrichment (sometimes called by its Latin name, quantum meruit). Kansas does generally recognize a claim for unjust enrichment where “ parties agree for tire performance of certain work, and the work is done and accepted, and it appears that there was a misunderstanding as to the price to be paid for it.’ [Citation omitted.]” Campbell-Leonard Realtors v. El Matador Apartment Co., 220 Kan. 659, 662, 556 P.2d 459 (1976). In such cases, the court may award “reasonable compensation.” 220 Kan. at 662.
But a claim for unjust enrichment is an equitable claim, and generally an equitable remedy is not available when an adequate remedy exists under another legal claim. Nelson v. Nelson, 288 Kan. 570, 597, 205 P.3d 715 (2009). Here, Deeds has a statutory remedy through his Kansas Wage Payment Act claim, and he seeks the same damages under that claim that he seeks here under unjust enrichment.
As of the time of oral argument before us, Deeds’ claim under the Kansas Wage Payment Act remained pending before the Kansas Secretary of Labor. Because Deeds has an adequate statutory remedy, his equitable unjust-enrichment claim is preempted and cannot proceed. See Garcia v. Tyson Foods, Inc., 766 F. Supp. 2d 1167, 1188 (D. Kan. 2011).
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Arnold-Burger, J.:
Based upon a case manager s recommendations to the court, Karen L. Wray lost residential custody of her minor child without a hearing. She asserts that the district court’s actions deprived her of due process of law. We agree. Accordingly, we reverse the district court’s decision and remand the case to it with directions to conduct an evidentiary hearing on the case manager’s recommendations.
Factual and Procedural History
This appeal involves an on-going dispute over child custody between former spouses Jeffrey Hutchison and Karen Wray. Hutch ison and Wray were married in 2000. During the marriage, the parties had one child, E.H, who was bom in 2001.
In 2002, Hutchison filed a petition for divorce in the District Court of Douglas County, Kansas. The district court found that Hutchison and Wray were irreconcilably incompatible and entered a decree of divorce. The court’s divorce decree provided that issues regarding child custody, parenting time, and support would be resolved at subsequent hearings.
The parties eventually submitted an agreed-upon parenting plan which was approved by the district court. Under that agreement, they were awarded joint legal custody of E.H. Wray was granted residential custody, and Hutchison was granted weekly parenting time. The parenting plan also enumerated a shared custody schedule for holidays, birthdays, and vacations. Finally, the parenting plan provided that Hutchison and Wray would mediate any future disputes involving custody, visitation, or other matters involving E.H. should the parties be unable to come to a mutually satisfactory agreement. The district court appointed Susan Kraus as mediator.
In 2004, Hutchison filed a motion requesting that the district court appoint a case manager and order the parties to participate in case management. The district court ordered the parties to participate in further mediation with Susan Kraus. The district court also provided that it would order Hutchison and Wray to participate in case management should Kraus recommend such action to the court.
In 2007, Kraus notified the district court that mediation was not working, that the continued conflict was damaging to E.H., and that the parties should participate in case management. The court accepted Kraus’ recommendations and ordered Hutchison and Wray to participate in case management. The court appointed Cheryl Powers as the case manager.
Over the next 4 years, motions were filed by Wray seeking the removal of Powers as the case manager, requesting that the court rescind its previous order authorizing case management, and objecting to Powers’ recommendations. The court denied Wray’s motions and adopted Powers’ recommendations.
On February 7,2011, prompted by notice that Wray was getting married and planned to move to Marion, Kansas, with E.H., Powers set up a meeting with Wray, her fiancé, and Hutchison. No agreement was reached as to the residential custody of E.H. subsequent to the move. Accordingly, Powers submitted recommendations for consideration by the district court. Powers recommended that the district court change primary residential custody of E.H. from Wray to Hutchison, with both parents retaining joint legal custody. Powers noted that due to Wray’s relocation, it would be in E.H.’s best interest to remain with Hutchison because this would provide her with more stability and consistency. She reasoned that Wray has had a history of alienating E.H. from Hutchison and this alienation would only increase if she were allowed to move away with the child. Powers also recommended that Wray receive the parenting time that the district court awarded Hutchison under its March 2009 order. Powers recommended that the change of residential placement take place in 10 days.
In response to Powers’ February 2011 recommendations, Wray filed a written notice objecting to those recommendations and requesting that the trial court remove Powers as case manger. Wray also filed a motion for change of custody and a proposed parenting plan. Finally, Wray filed motions requesting an ex parte injunction and the appointment of a guardian ad litem (GAL) for E.H. Wray requested a hearing and in regard to her motion for an injunction, she requested that the district court refrain from ruling on Powers’ recommendations until it held a hearing on the issues of custody, parenting time, and removal of Powers as case manager. Wray’s objections challenged as untruthful and incomplete numerous statements made by Powers in her recommendations. Powers replied to Wray’s motions by filing a follow-up report that responded to the assertions and requests made in Wray’s motions. Powers also submitted an amended report which proposed that the trial court order the implementation of her February 7 recommendations effective March 10, 2011 (instead of February 17, as she had previously recommended). Powers also noted her objection to her own removal and to the appointment of a GAL.
On March 8, 2011, without a hearing, but with the case manager’s recommendations and written report before it, as well as the specific objections raised by Wray, the district court entered its decision. The district court addressed several of Wray’s stated concerns in its order. The court focused on the fact that Wray was getting married and moving from Lawrence to Marion, Kansas. It found this to be a significant and substantial change in circumstances. The court noted the case manager’s concern that Hutchison would be more likely to allow tire child to maintain a relationship with Wray, than Wray would be to allow the child to maintain a relationship with Plutchison “due to [Wray’s] continuing anger at [Hutchison],” concerns the court noted were shared by the child’s psychologist. The court ordered that Hutchison and Wray continue to share joint legal custody and awarded Hutchison primary residential custody of E.H. However, the court made no rulings as to Wray’s motions requesting the appointment of a GAL or the removal of Powers as case manager.
Wray subsequently filed a motion to reconsider, requesting that the court rescind its March 8 adoption of the case manager’s recommendations, schedule a hearing on Wray’s motions, and appoint a GAL for E.H.
Wray’s motion to reconsider was initially set for a hearing to be held on May 3, 2011. However, approximately 1 week before the hearing, the district court entered a written order denying Wray’s motion and cancelling the hearing scheduled for May 3. Wray appeals from the order denying her motion for reconsideration and denial of a hearing. Although in her appellate brief, Wray raises several concerns alleging retaliatory conduct associated with Powers’ subsequent recommendations after residential custody had been changed, those recommendations and associated orders were not appealed and therefore will not be addressed herein.
Wray raises two arguments on appeal. First, she contends that the district court violated her due process rights under the Fifth and Fourteenth Amendments to the United States Constitution by declining to hold an evidentiary hearing on her motion to remove the case manager, her objections to the case manager’s recommendations, and her motion to reconsider. See also Kan. Const. Bill of Rights, § 18. Next, she argues that Judge Pokorny was required to recuse herself from hearing the case. We will address each issue and include additional factual background as necessaiy.
Wray’s Due Process Claim
Wray argues that the district court’s adoption of the case manager’s recommendations infringed on her fundamental right to malee decisions regarding the care, custody, and control of E.H. She contends that when a case manager’s recommendations propose a serious alteration in the custody arrangement between two parents, due process requires that a trial court hold a hearing before making a decision on the case manager’s recommendations.
Whether a procedure employed comports with due process is a question of law over which an appellate court exercises unlimited review. See Hogue v. Bruce, 279 Kan. 848, Syl. ¶ 1, 113 P.3d 234 (2005).
The fundamental requirements of procedural due process are notice and the opportunity to be heard at a meaningful time and in a meaningful manner. State v. Moody, 282 Kan. 181, 188, 144 P.3d 612 (2006). In reviewing a procedural due process claim, a reviewing court must first determine whether a protected liberty or property interest is involved. If such an interest is implicated, then a court must next determine the nature and extent of the process due. In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007).
A protected liberty interest is at stake.
It is well established that a parent’s right to make decisions regarding the care, custody, and control of his or her child is a fundamental liberty interest protected by the Fourteenth Amendment. Before a parent can be deprived of his or her right to the care, custody, and control of his or her child, he or she is entitled to due process of law. In re J.D.C., 284 Kan. at 166.
Wray’s claim implicates a protected liberty interest because the district’s court adoption of Powers’ recommendations altered the residential custody arrangement and parenting time schedule between Wray and Hutchison thereby impacting Wray’s right to the care, custody, and control of E.H. Therefore, the first step in Wray’s procedural due process claim has been met.
The nature and extent of the process due.
A due process violation occurs only when a party is able to establish that he or she was denied a specific procedural protection to which he or she was entitled. In re J.D.C., 284 Kan. at 166. The concept of due process is flexible in that not all situations calling for procedural safeguards call for the same kind of procedure. In re Petition of City of Overland Park for Annexation of Land, 241 Kan. 365, 370, 736 P.2d 923 (1987).
In order to determine the nature and extent of the procedural protections that an individual is entitled to receive, a court applies the balancing test established in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). State v. Wilkinson, 269 Kan. 603, 609, 9 P.3d 1 (2000). Under that test, a reviewing court weighs the following factors: (1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest through the procedures employed and the probative value, if any, of additional or substitute procedural safeguards; and (3) the State’s interest in the procedures used, including the fiscal and administrative burdens that any additional or substitute procedures would entail. In re J.D.C., 284 Kan. at 166-67.
We turn first to a description of the statutory procedures implicated in this case and thereafter consider the factors bearing upon the constitutional adequacy of these procedures by applying the Mathews factors.
The case management process.
Case management is a tool to be used to facilitate “negotiation of a plan for child custody, residency or visitation or parenting time.” K.S.A. 23-1001. The court may order case management, as it did in this case, when confronted with contested child custody, visitation, or parenting time issues and die conflict between the parties is so great that other neutral dispute resolution services, in this case mediation, have tried and failed to resolve the dispute. K.S.A. 23-1002. When the parties are unable to reach an agreement, the case manager must recommend a resolution to the court. K.S.A. 23-1003(d)(2). When those recommendations involve permanent issues such as designation of custody, primary residency, or child support, the recommendations must be filed with the court within 10 working days of their receipt. K.S.A. 23-1003(d)(5). If a parent disagrees with the recommendations, he or she must file a motion with the court requesting that the court review the recommendations. Upon the filing of an objection, the case manager is tiren required to explain to the court, either by report or testimony, the reasons for the recommendations. The court then enters an order regarding the recommendations. K.S.A. 23-1003(d)(6).
Therefore, under the plain language of the case management statute, no hearing is required. The judge may simply review the motion and a written report from the case manager. It does not prohibit a hearing, but it does not require one either. The decision to grant a hearing is left to the sound discretion of the judge. Likewise, the recommendations from the case manager are simply advisory in nature and the district court is not required to accept the recommendations.
With the statutory procedure in mind, we turn to an examination of the Mathews factors.
The individual interest at stake.
The first Mathews factor considers the individual interest at stake. Mathews, 424 U.S. at 339-40.
“[0]ther than the right to personal freedom, there maybe no private right valued more highly or protected more zealously by the courts than the right of a parent to the custody and control of his or her children. It follows that in the balancing test, die private rights affected by governmental action are very significant and are entitled to the highest protection from unwarranted governmental action.” In re of J.L., 20 Kan. App. 2d 665, 671, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995).
As noted previously, the district court’s adoption of Powers’ recommendations implicated Wray’s liberty interest in the care, custody, and control of E.H. because it altered tire custodial arrangement that was previously in place. Specifically, Powers’ recommendations shifted primaiy residential custody of E.H. from Wray to Hutchison and also recommended that Wray receive a reduced amount of parenting time.
However, as the Mathews court noted, in reviewing the adequacy of a specific set of procedures, a court may consider the “degree of potential deprivation” that results from the application of those procedures. Mathews, 424 U.S. at 341. Due process of law does not require a hearing “ ‘in eveiy conceivable case of government impairment of a private interest.’ ” Stanley v. Illinois, 405 U.S. 645, 650, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). Certainly if the case manager recommended a minor change in parenting time or recommended the child see a particular counselor rather than a counselor chosen by the parent, although such recommendations certainly impact a parent’s care and control, the degree of deprivation is slight and tire resulting due process required is less. Due process requires that anyone materially affected by the actions of the court in a legal proceeding is entitled to a full and ample opportunity to be heard. State ex rel. Stephan v. O’Keefe, 235 Kan. 1022, 1027, 686 P.2d 171 (1984).
In this case, the adoption of Powers’ recommendations did not completely deprive Wray of the care, custody, and control of E.H. She still maintained joint legal custody. Nevertheless, the adoption of a case manager’s recommendations changing residential custody do materially affect a parent’s liberty interest in his or her child, and the existence of that potentiality warrants allowing the affected parent the opportunity to challenge a case manager’s recommendations at an evidentiary hearing on the matter. Accordingly, the first Mathews factor weighs in favor of requiring a hearing when a parent objects to a case manager’s recommendations that impact significant parenting rights such as legal custody, residential custody, or significant changes in parenting time.
The risk that the existing procedures will result in the deprivation of a protected right.
The second Mathews factor assesses tire risk of existing procedures resulting in the erroneous deprivation of a protected liberty interest and the probative value of additional or substitute procedures. Mathews, 424 U.S. at 343. As previously noted, the case management statute does not require a hearing when a parent objects to the case manager’s recommendations or when a modifi cation of custody is sought, regardless of tire overall impact of the recommendations on the parent’s constitutionally protected liberty interest in the care, custody, and control of his or her child. If a party disagrees with a case manager’s recommendations, the objecting party must file a motion for a review. Once a motion for review is filed, tire case manager is required to explain and support the recommendations either by report or testimony. The trial court has the option to receive the case manager’s reasons supporting the recommendations through in-court testimony or to receive those reasons via a written report.
If the trial court receives a case manager’s reasons supporting his or her recommendations in report form, then the court is faced with the possibility of making a significant child custody decision based solely upon the information received in that report. Moreover, when the case manager’s report makes recommendations which rely upon material facts that are either not supported by specific factual references or are specifically disputed by the objecting party, tire risk of an erroneous deprivation of a constitutional right increases significantly. Therefore, due process requires that the objecting party be given an adequate opportunity to contest or rebut the case manager’s claims and recommendations through cross-examination and tire presentation of witnesses. Giving parents the opportunity to challenge the reasons for a case manager’s recommendations in such circumstances would provide additional probative value and would generate useful information that the trial court can consider in making a final determination on the case manager’s recommendations.
Mathews supports this conclusion. In considering this factor, die Supreme Court noted that an evidentiary hearing is not likely to be an effective prophylactic measure to safeguard against an erroneous deprivation of a protected liberty interest when the resolution of the dispute simply turns on the consideration of objective and scientific evidence. Mathews, 424 U.S. at 344-45. In contrast, “where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Determining what type of child custody arrangement is in the best interests of a child requires a court to engage in a heavily fact-driven analysis. See K.S.A. 60-1610(a)(3)(B) (listing the various factors that a trial court considers in deciding issues regarding child custody, residency, and parenting time); K.S.A. 60-1620 (listing the factors the court must consider in modifying legal custody, residency, child support, or parenting time based upon a change of residency); K.S.A. 60-1628 (requiring that parties seeking to modify a final order regarding custody or residential placement include with specificity all known factual allegations which constitute the basis for a change and providing for a trial on the factual issues if a prima facie case is pled).
Finally, consultation of related provisions of die Kansas Family Law Code offer insight concerning a district court’s obligation to hold a hearing in a case in which the parties cannot agree on child custody issues. For instance, in cases in which custody, residency, visitation rights, or parenting time is originally contested, K.S.A. 60-1615(a) authorizes a trial court to order an investigation and report to aide it in determining the appropriate outcome. After the report is prepared, the trial court must make the report available to all the parties before conducting the hearing to resolve any issues. K.S.A. 60-1615(c). The commissioning of a report to help clarify issues regarding child custody, residency, and parenting time does not function as a substitute for a hearing; the trial court' must still have a hearing to determine any outstanding custody, residency, or parenting time issues, and the report functions as one source of information the court can consult to malee a determination that is in the best interests of the child.
Likewise, when a parent seeks to modify a final child custody or residential placement order, he or she is required to establish that there has been a material change in circumstances. If the parent is able to meet this burden, the statute anticipates the necessity of a trial on the factual issues presented. See K.S.A. 60-1628(a).
The State’s interest in the procedure used.
The third Mathews factor takes into account the State’s interest in the procedures used and also considers the fiscal and administrative burdens that would result if additional or substitute pro cedures were employed. Mathews, 424 U.S. at 347. Case management was designed to provide a nonjudicial method of resolving on-going disputes between parents regarding child custody, parenting time, and other issues normally involved in custody disputes. The legislature specified certain circumstances in which case management may be appropriate; those circumstances include cases in which both parents have been unable to resolve a dispute by participating in alternative dispute resolution services and in cases involving a litigious party or parties. K.S.A. 23-1002(b)(l) and (3).
The State certainly has an interest in facilitating opportunities for parents to resolve ongoing disputes over child custody, parenting time, and other custody issues outside of tire courtroom. This provides parents with the opportunity to attempt to come to a mutually agreeable arrangement, which is more likely to accomplish a result that is in the child’s best interests. Murphy v. Murphy, 196 Kan. 118, 122, 410 P.2d 252 (1966) (noting that State in exercising its parens patriae power has duty to act in the best interests and welfare of child). Furthermore, by providing parents with an opportunity to participate in the case management process, the State is seeking to minimize or reduce the need for a time-consuming, burdensome, and fact-intensive hearing. Avoiding the need for a hearing in every child custody dispute allows the State to effectively allocate its judicial resources and to have hearings in cases where a hearing is truly necessary. See Mathews, 424 U.S. at 348. But the fact remains that the sole authority to determine child custody and residency rests with the district court. See K.S.A. 60-1610(a)(3); K.S.A. 60-1610(a)(4); In re D.R.K., No. 90,689, 2003 WL 22831935, at °6-7 (Kan. App. 2003) (unpublished opinion). There is nothing in the case management statutory scheme to suggest that a judge is required to abdicate his or her judicial decision making to the case manager. The case manager does not displace the court.
In sum, a weighing of the three Mathews factors leads to the conclusion that when the case manager’s recommendations materially affects a parent’s right to the care, custody, and control of a child and the case manager’s report relies upon material facts that are either not supported by specific factual references or are spe cifically disputed by a parent, due process requires that the district court conduct an evidentiary hearing prior to ruling on the recommendations. Although this holding may result in courts having busier dockets, the information received at such a hearing will aid the courts in deciding whether the case manager s recommendations are in the best interests of the child and insure that due process, one of the most sacred and essential constitutional guarantees, is provided to the parties. See O’Keefe, 235 Kan. at 1027.
Failure to provide an evidentiary hearing regarding Wray’s objections to the case managers recommendations deprived Wray of due process.
Applying our holding to the specific facts of this case, we conclude Powers’ recommendations changing residential custody from Wray to Hutchison materially affected Wray’s care, custody, and control of E.H. Powers’ recommendations contained, as their bases, conclusory statements that Wray was denigrating Hutchison to E.H., that Wray’s fiancé showed a lack of respect for Hutchison at a joint meeting, that if Wray were to move with E.H., Wray would not be allowed to “love and enjoy” Hutchison, that Wray has “continued to not cooperate or participate in” E.H.’s counseling, and that a move to a new school would be disruptive to E.PI. Wray filed an objection to Powers’ recommendations. In it she disputed that she had been uncooperative with E.H.’s therapy, denied that she made disparaging remarks about Hutchison to E.H., denied her fiancé was disrespectful to Hutchison, and denied, based on conversations with the school counselor, that a change in school would be detrimental to E.H. She also challenged Powers’ objectivity and argued that a change in residential custody would be detrimental to E.H. In addition, Wray asked that a GAL be appointed for E.H.
The tone and content of Powers’ subsequent response to Wray’s objection can hardly be described as a professional report from a neutral factfinder or facilitator. See K.S.A. 23-1001. Although Powers was not asked to address Wray’s request for the appointment of a GAL, nor was she statutorily required to weigh in on the issue, she recommended that a GAL not be appointed because E.H. was adequately represented “by this Case Manager.” Powers indicated that she had conversations with E.H.’s psychologist that factored into her recommendations, although she did not provide any detail or summary of those conversations. Powers further concluded that she “would not write a Recommendation that is detrimental to any child.” In support of her assertion that Wray had not participated in E.H.’s therapy, she stated that Wray “has refused multiple times to take [E.H.] to therapy.” She also accused Wray of coaching E.H. in what to “say and ask,” provided specific examples, and implied that the psychologist agreed widr her assessment.
It is clear that Powers’ report makes recommendations regarding residential custody which rely upon material facts that are either not supported by specific factual references or are specifically disputed by Wray. Due process requires that Wray be given an adequate opportunity to contest or rebut Powers’ claims and recommendations through cross-examination and the presentation of witnesses. Accordingly, we remand the case with directions to conduct an evidentiary hearing on Wray’s objections to the case manager’s recommendations.
Motion to remove the case manager.
Wray also appeals the denial of a hearing on her motion to remove Powers as case manager, claiming that this too denied her of due process. However she fails to present any argument or authorities on this point in her appellate brief. Moreover, she alleges no protected liberty or property interest in the appointment or removal of a case manager that would implicate due process considerations. An issue not briefed by the appellant is deemed waived and abandoned. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 281, 225 P.3d 707 (2010). In addition, failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). Accordingly, we deem this issue abandoned by Wray.
We Lack Jurisdiction to Rule on Wray’s Request for Change of Judge
If a party believes that the judge to whom the case has been assigned cannot afford the party a fair trial, the party may file a motion for change of judge. K.S.A. 20-311d(a). Once such a motion is filed, the judge is required to promptly hear the matter. If the judge refuses to disqualify himself or herself, the party may file an affidavit alleging the specific grounds for disqualification, at which time another judge is assigned to determine if the affidavit is legally sufficient to establish the necessity for disqualification. K.S.A. 20-311d(b).
Wray argues that Judge Pokorny is required to recuse herself from future proceedings in this case because she has demonstrated bias, prejudice, or partiality toward Wray in the proceedings below. However, Wray failed to follow the statutory procedure. She did not file a motion seeking a change of judge as required by K.S.A. 20-311d; instead, she inserted one sentence in her 21-page motion to reconsider that stated “[ujnder K.S.A. 20-311(b) [sic] this court should recuse herself from hearing any other proceedings in this case.” She did not indicate in the heading of the motion that it was also a motion for change of judge. In her final prayer for relief at the conclusion of the motion to reconsider, Wray did not seek the removal of Judge Pokorny. We find this inadequate to place the district court on notice that Wray was seeking a change of judge. In fact, the district court did not enter any ruling regarding recusal. A party’s failure to timely file a motion requesting that the trial judge recuse himself or herself from the proceedings below bars that party from raising the issue on appeal. State v. Brown, 266 Kan. 563, 570, 973 P.2d 773 (1999).
Moreover, “ ‘[i]t is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over the rulings identified in the notice of appeal.’ ” State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012). In her notice of appeal, Wray did not indicate she was appealing an order or lack of an order regarding the judge’s recusal. She indicated she was appealing the district court’s order (1) denying Wray’s motion to reconsider; (2) denying Wray’s request for hearing on the motion to remove the case manager; and (3) rescinding its order for a hearing on the motion to reconsider. Therefore we lack jurisdiction to entertain any appeal of a motion to change judge.
Reversed and remanded with directions for the district court to conduct an evidentiary hearing on Wray s objections to the case manager’s recommendations modifying residential custody of E.H. Wray’s remaining claims are dismissed.
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Buser, J.:
Patrick Unrein appeals an order of the district court requiring him to register as an “[offender” under the Kansas Offender Registration Act (KORA), K.S.A. 2010 Supp. 22-4902(a)(7), because he used a deadly weapon in the commission of two attempted aggravated assaults. Unrein contends he entered guilty pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). As a result, he claims the sentencing court’s finding of fact that he used a deadly weapon without submitting the matter to a jury for determination violated his right to a jury trial as provided by the Sixth and Fourteenth Amendments to the Constitution of the United States.
We hold that any stigma which may attach to Unrein because he was required to register as an offender for his use of a deadly weapon in the commission of two attempted aggravated assaults is not punishment or an increase in the penalty for his crimes beyond the prescribed statutory maximum terms of incarceration. Accordingly, the district court’s finding of fact regarding the use of a deadly weapon did not violate Unrein’s constitutional right to a jury trial. We also find no error in the sentencing court’s use of Unrein’s prior criminal history without requiring the State to prove it to a jury beyond a reasonable doubt. Accordingly, we affirm.
Factual and Procedural Background
Unrein was charged with two counts of aggravated assault, K.S.A. 21-3410(a), one count of criminal threat, K.S.A. 21-3419(a)(1), and one count of criminal possession of a firearm, K.S.A. 21-4204(a)(4)(A). The State alleged that Unrein had committed the aggravated assaults “with a deadly weapon, to-wit: Stevens Brand .410 gauge single shotgun.” The State cited K.S.A. 21-3410(a) for the aggravated assault charges, which defined that crime as assault “[wjith a deadly weapon.”
Ultimately, Unrein signed a plea agreement stating he would “enter a plea of guilty” to two counts of attempted aggravated assault and one count of criminal threat. At the plea hearing, when the district court asked Unrein for his pleas, Unrein replied: “I plead guilty to them [sic] three counts.” The district court asked: “Are you pleading guilty because you [are] guilty or are you pleading guilty for some other reason?” Unrein responded: “I’m pleading guilty because I’m taking advantage of a plea agreement offered to me.” After a colloquy between the district court and Unrein about his right to plead guilty and take advantage of a plea agreement without admitting that he was guilty, the prosecutor noted: “I’m assuming we’re entering an Alforcl plea at this point.” There was no further mention that the guilty pleas were based on Alford, 400 U.S. 25.
The prosecutor next proffered the facts tire State would prove at trial. These facts included that Unrein “picked up [a] shotgun, put [in] a bullet [sic], cocked the gun, put it to the back of [one victim’s] head,” and that when another victim “arrived home . . . [Unrein] was pointing the shotgun at him.” The district court accepted Unrein’s guilty pleas, found there was a factual basis for the pleas, and found him guilty.
In keeping with the plea agreement, the State filed an amended information charging two counts of attempted aggravated assault, K.S.A. 21-3301 and K.S.A.21-3410(a), and one count of criminal threat, K.S.A. 21-3419(a)(l). In the amended charging document, the State alleged Unrein committed tire attempted aggravated assaults by “grabbing the shotgun, with the intention to commit said crime,” and by “picking up and loading the shotgun, with the intention to commit said crime.”
At the sentencing hearing, Unrein’s counsel asked the district court not to impose KORA’s registration requirement, claiming the intention of the State and defense was that Unrein would not have to register as an offender. The State denied there was any agreement regarding the registration requirement. The district court found Unrein had used a deadly weapon in the commission of the two attempted aggravated assaults and ordered him to register as an offender under K.S.A. 2010 Supp. 22-4902(a)(7).
Later, Unrein filed a motion “to reconsider the finding that a firearm was used during the commission of this offense.” At the hearing on the motion, Unrein asserted the “intent of the parties when negotiating this case . . . was to not have the firearm be involved in the commission of the offense. And therefore, Mr. Unrein is not having to register [sic].” The State responded that it was the State’s “intention ... he did have to register.” The State also noted that during the plea hearing “the gun was clearly mentioned during the giving of the fáctual basis by the State since it was an Alford plea.”
The district court observed that Unrein could move to withdraw his pleas because of the dispute. Short of that, however, the district court stated that the use of a “deadly weapon . . . [was] part of the crime,” as defined by K.S.A. 21-3410(a). It also noted die charging documents had alleged use of a deadly weapon. The district court concluded it lacked “authority to disregard the statute and the facts that are in front of it.” Unrein’s motion to reconsider the registration requirement was denied. Unrein filed a timely appeal.
Did the District Court’s Finding that Unrein Used a Deadly Weapon Which Resulted in an Order to Register Under KORA Violate His Constitutional Right to a Trial by Jury?
KORA requires district courts to order particular offenders to register with the state. K.S.A. 2010 Supp. 22-4904. In the present case, Unrein was ordered to register as an offender upon the sentencing court’s finding that he used a deadly weapon in the commission of the two attempted aggravated assaults.
Unrein does not reprise his argument below that registration as an offender under KORA was contrary to his plea agreement. Instead, he contends based on Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that the district court violated his constitutional rights by ordering registration without either Unrein’s admission to the use of a deadly weapon or a jury determination of that fact. This is a new issue on appeal, but we will consider it because it involves fundamental rights. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Because the issue presented is a question of law, our review is unlimited. See McComb v. State, 32 Kan. App. 2d 1037, 1041, 94 P.3d 715, rev. denied 278 Kan. 846 (2004).
Preliminarily, the State does not dispute Unrein’s contention that his guilty pleas were entered pursuant to Alford. Given this concession and the evidence in support of it, we agree that by pleading guilty, Unrein did not admit to using a deadly weapon in the commission of the two attempted aggravated assaults. See State v. Case, 289 Kan. 457, Syl. ¶ 2, 213 P.3d 429 (2009) (“An Alford plea is a plea of guilty to a criminal charge but without admitting to its commission, i.e., to the truth of the charge and every material fact therein.”).
Unrein’s argument on appeal is predicated on Apprendi’s holding: “Other than the facts of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. According to Unrein, because by his Alford pleas he did not explicitly admit to the use of a deadly weapon, the district court’s finding that resulted in the imposition of the offender registration requirement impermissibly increased the penalty without having the finding proven to a jury beyond a reasonable doubt.
As a result, the issue presented on appeal is: Did the district court violate Unrein’s constitutional right to a jury trial by finding that he used a deadly weapon during the commission of the offenses without submitting the matter to a jury for determination before ordering registration pursuant to KORA? Critical to answering this question is whether KORA’s offender registration requirement is an increased penalty under Apprendi.
Unrein acknowledges the same argument he raises on appeal was “rejected” in a prior KORA case, State v. Chambers, 36 Kan. App. 2d 228, 239, 138 P.3d 405, rev. denied 282 Kan. 792 (2006). In Chambers, the sentencing court ordered registration pursuant to KORA after finding that a burglary conviction was sexually motivated. This finding that the defendant committed a sexually violent crime made the defendant an offender under a separate subsection of the registration law. See 36 Kan. App. 2d 231-32 (quoting K.S.A. 2005 Supp. 22-4902[c][14]).
Similar to the present case, in Chambers the defendant contended the registration requirement was an increased punishment that implicated Apprendi s constitutional protections. Our court, however, held:
“[T]he sentencing judge’s finding of sexual motivation in the present case did not increase the terms of Chambers’ underlying prison sentences beyond the maximum sentence provided for burglary. The sentencing judge’s determination of sexual motivation did not, therefore, implicate Apprendi’s guarantee of rights under the Sixth and Fourteenth Amendments to the Constitution of the United States.” 36 Kan. App. 2d at 239.
Unrein contends, however, “[t]he Chambers decision was wrong because it narrowly interpreted the rule in Apprendi by holding that it should only be applied to increased sentences, not increased punishment.” In fact, Chambers distinguished an increased sentence (that implicates Apprendi) from increased punishment (that does not implicate Apprendi) based, in part, on Kansas Supreme Court precedent. See 36 Kan. App. 2d at 237-39. We are bound to follow this precedent absent an indication our Supreme Court is departing from its previous position. State v. Jones, 44 Kan. App. 2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). We are unaware of any indication our Supreme Court is departing from prior precedent in this matter.
Moreover, we are not persuaded by Unrein’s argument that registration under KORA and under these circumstances is necessarily punishment. Unrein alleges there is a “certain stigma attached” to offender registration. But Unrein does not define, explain, or quantify the notoriety he alleges results from the simple act of registration. We can only assume Unrein means a general stigma of social disapproval. While we are willing to consider the issue for the first time on appeal, Unrein still bears the burden to designate a record affirmatively showing error, which he has not done. See State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008).
If we were to assume a general stigma from KORA registration, we would turn for guidance to Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), which was also cited in Chambers. The question in Smith was whether posting sex offender registration on the Internet was punishment for ex post facto purposes. The United States Supreme Court held it was not punishment despite tire “adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism.” 538 U.S. at 99. The Court reasoned the “purpose and principal effect of notification are to inform the public for its own safety, not to humiliate the offender.” 538 U.S. at 99; see also United States v. Hinckley, 550 F.3d 926, 937-38 (10th Cir. 2008) (applying Smith). If the stigma attached to public registration as a sex offender is not punishment, the notoriety that Unrein might experience for being listed as an individual who used a deadly weapon during the commission of two crimes is also not punishment.
Unrein also mentions that he must perform duties related to registration or face prosecution under K.S.A. 22-4903, and that he must pay a $20 fee whenever reporting to a sheriffs office. See K.S.A. 2010 Supp. 22-4904(e). Unrein cites no authority holding these requirements are punishment, and he provides no reasoning or evidence supporting that conclusion. This is akin to waiving or abandoning an issue on appeal. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
If we were to consider these registration requirements, Smith again provides guidance. The United States Supreme Court noted the “[widespread public access” caused by posting sex offender registration on the Internet was “necessary for the efficacy of tire scheme.” 538 U.S. at 99. Based on the record before us, we would similarly conclude that Unrein’s exposure to further criminal liability if he would violate KORA is necessary for the efficacy of the regulatory scheme. The purpose of registration is public safety, see State v. Cook, 286 Kan. 766, 774, 187 P.3d 1283 (2008), and the threat of criminal liability is not punishment but a means to this end. We also would conclude the $20 fee is not punishment but a way to reimburse sheriff s offices for services provided in the regulatory scheme. See K.S.A. 2010 Supp. 22-4904(e) (“All funds retained by the sheriff . . . shall be credited to a special fund . . . which shall be used solely for law enforcement and criminal prosecution . . . and which shall not be used as a source of revenue to reduce the amount of funding otherwise made available to the sheriff s office.”); State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006) (characterizing BIDS fees as “recoupment” and “not fines or, indeed, any part of the punishment or sanction”).
For all of these reasons, we hold the district court’s factual finding that Unrein used a deadly weapon in the commission of two attempted aggravated assaults which resulted in the court’s order for Unrein to register under KORA did not violate his constitutional right to a jury trial.
On a related matter, Unrein also contends the sentencing court’s determination of his criminal history score without submission of the matter to a juiy violated his constitutional right to a jury trial. Unrein acknowledges, however, our Supreme Court’s holding that a district court’s determination of a defendant’s criminal history score at sentencing does not violate a defendant’s constitutional right to a juiy trial. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). Unrein raises this issue only to preserve it for federal review. Our Supreme Court has declined to “retreat” from Ivory, and we are again bound by that precedent. See State v. McCaslin, 291 Kan. 697, 731-32, 245 P.3d 1030 (2011).
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Marquardt, J.:
Consumer Law Associates, LLC; Persels & Associates, LLC; David E. Herron, II; Stanley Goodwin; and Laura Simpson-Redmond (Petitioners) appeal the district court’s dismissal of their declaratory judgment action and writ of mandamus petition for failing to exhaust administrative remedies. We affirm the dismissal.
In July 2009, the Office of the Kansas State Bank Commissioner (OSBC) contacted Consumer Law Associates, LLC (CLA), and Persels & Associates, LLC (Persels), national law firms which are located in Maryland, because OSBC had received several complaints from their Kansas customers. Following an investigation, the OSBC believed that CLA and Persels were possibly engaged in unregistered credit and debt management services that violated the Kansas Credit Services Organization Act (KCSOA), K.S A. 50-1116 et seq., and notified CLA and Persels of the possible violations.
Before the OSBC had an opportunity to hold a hearing on the possible violations or to send a cease and desist order under K.S.A. 50-1129, CLA, Persels, and three of their field attorneys in Kansas, David E. Herron, II, Stanley Goodwin, and Laura Simpson-Redmond (Petitioners), filed a verified petition for a declaratory judgment action (petition) with the Shawnee County District Court. The Petitioners alleged they were exempt from the OSBC’s regulation, which states: “Any person licensed to practice law in this state acting within the course and scope of such person’s practice as an attorney shall be exempt from the provisions of this act.” K.S.A. 50-1116(b). The field attorneys work for CLA and Persels, and the clients they serve are CLA’s and Persel’s clients.
The Petitioners claimed that they were not required to exhaust administrative remedies because (1) the OSBC did not have the authority to regulate attorneys, (2) the only issues were questions of law, (3) the Kansas Supreme Court alone regulates attorneys and law firms, and (4) any administrative remedy was inadequate or would result in irreparable harm. Finally, the Petitioners argued the district court should bar the OSBC from bringing an administrative action against them because it lacked subject matter jurisdiction.
The same day the Petitioners filed their petition, they also filed a motion for a writ of mandamus and temporary injunction (motion) to bar the OSBC from initiating administrative proceedings and from issuing a cease and desist order. The Petitioners alleged they would suffer irreparable harm if the OSBC prevented them from rendering legal services or advice to their more than 1,000 Kansas clients.
The district court held a status conference on September 16, 2010, but apparently refused to issue a writ of mandamus or a temporary restraining order. Instead, the district court instructed the OSBC to file its response to Petitioners’ declaratory judgment action. Later that day, the OSBC issued a summary order to cease and desist and pay a fine under the Kansas Administrative Proce dure Act (KAPA), K.S.A. 77-501 et seq., and K.S.A. 50-1129. The order required CLA, Persels, and their owners, officers, partners, and directors to immediately cease and desist from engaging in any “credit services organization business, as defined by K.S.A. 50-1117(c), in tire State of Kansas and with Kansas residents.” The order directed CLA and Persels to pay a fine of $8,400,000 based on 1,671 violations of K.S.A. 50-1118(a), and at least one violation of K.S.A. 50-1121(a), (b), (d), (f), and (p). The order stated that CLA and Persels could request a hearing under K.S.A. 77-542 to challenge the order. It is undisputed that this order was directed at CLA, Persels, and their owners, partners, officers, and directors, along with Neil J. Ruther and Lisa L. Perillo; furthermore, it did not name or restrict Herron, Goodwin, or Simpson-Redmond.
On September 24, 2010, the OSBC filed a response to Petitioners’ declaratory judgment petition and indicated its intention to file a motion to dismiss. In its response, the OSBC argued that administrative procedures were available to CLA and Persels and the administrative procedures were adequate to resolve the issues CLA and Persels raised in their petition.
The OSBC filed a motion to dismiss on October 14,2010, claiming that Petitioners lacked an actual case or controversy because they filed their petition for declaratory judgment before the OSBC filed its cease and desist order. Further, the OSBC alleged the district court lacked subject matter jurisdiction over the declaratory judgment petition because the Petitioners failed to exhaust administrative remedies or establish that an administrative remedy would be inadequate.
On April 22, 2011, the district court filed a memorandum decision and order concluding that the exemption in K.S.A. 50-1116(b) only applies to “those who are ‘licensed to practice law’ in the State of Kansas and who are ‘acting within the course and scope’ of their practice.” After analyzing several Kansas Supreme Court Rules, the district court determined that a limited liability company cannot possibly be “ ‘licensed to practice law’ ” in Kansas because
“a limited liability company cannot obtain an undergraduate or law school degree, cannot pass a written bar examination and cannot meet the other requirements mandated by the Kansas Supreme Court to obtain a license to practice law in this state. Accordingly, the Court concludes that the right to practice law may only be granted to natural persons and cannot be granted to artificial legal entities such as a corporation or a limited liability company.”
■ In reaching its conclusion, the district court followed the rationale of the case of Lexington Law Firm v. S.C. Dept. of Cons. Aff., 382 S.C. 580, 677 S.E.2d 591 (2009). In Lexington, the South Carolina Department of Consumer Affairs (Department) learned that a Utah-based law firm, Lexington Law Firm (Lexington), was providing credit counseling services to South Carolina citizens. The Department advised Lexington that the South Carolina Consumer Credit Counseling Act (Act) required credit counseling organizations to obtain a license. Lexington agreed but argued that the attorney exemption within the Act exempted it from tire Department’s regulation.
Lexington filed a declaratory judgment action before the Department could initiate administrative proceedings and sought a decision that the Act’s attorney exemption applied to Lexington. The Lexington court determined the Department was in the best position to implement its statutory charge of issuing licenses and the initial determination of whether a business qualifies for a statutory exemption. 382 S.C. at 586.
Utilizing the reasoning in Lexington, the district court here determined that CLA and Persels could not, as a matter of law, be licensed to practice law in Kansas and, therefore, they were not entitled to the exemption under K.S.A. 50-1116(b). Finally, the district court concluded that the Kansas Legislature specifically charged the OSBC, through the KCSOA, with the authority to regulate credit service- organizations in Kansas, including the authority to make an initial determination, subject to judicial review, whether a person violated the KCSOA or whether a person was entitled to an exemption. Because .the OSBC had the authority to make that initial determination, the district court held that CLA and Persels failed to exhaust their administrative remedies and dismissed tire declaratory judgment petition. The Petitioners filed a timely appeal.
The Petitioners filed a motion to stay administrative proceedings. The motion was granted on October 13, 2011, by the Office of Administrative Hearings.
On appeal, the threshold issue is whether the district court erred in finding that the Petitioners were required to exhaust administrative remedies before proceeding with their Chapter 60 declaratory judgment action. Whether a party is required to, or has failed to, exhaust its administrative remedies is a question of law over which an appellate court’s review is unlimited. Miller v. Kansas Dept. of S.R.S., 275 Kan. 349, 353, 64 P.3d 395 (2003).
The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., is the exclusive remedy for review of agency actions unless the KJRA specifically exempts the agency from its purview. See K.S.A. 2011 Supp. 77-603(a); K.S.A. 77-606. The KJRA does not exempt the OSBC. K.S.A. 2011 Supp. 77-603(c). Further, the KJRA has consistently been recognized as the exclusive means of review of an agency action. See, e.g., Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 755, 199 P.3d 781 (2009).
The Kansas Legislature charged the OSBC with the statutory duty to regulate any “credit service organization” or “debt management service” doing business in Kansas and to determine whether any person has violated or is about to violate the KCSOA. K.S.A. 50-1117(a), (c), (d); K.S.A. 50-1128(b)(3). The OSBC’s authority also includes the power to conduct hearings, to issue cease and desist orders, and to impose fines up to $10,000 per violation of the KCSOA. K.S.A. 50-1129(a). However, the KCSOA does not apply to “[a]ny person licensed to practice law in this state acting within the course and scope of such person’s practice as an attorney.” K.S.A. 50-1116(b).
Whether a person has violated, or is about to violate, the KCSOA necessarily requires the interpretation of statutes and the consideration of evidence. See Dean v. State, 250 Kan. 417, 422, 826 P.2d 1372, cert. denied 504 U.S. 973 (1992) (an agency’s interpretation of a statute was a necessary administrative act in implementing the statute, even though a court could later construe the statute differently); Farmers Banshares of Abilene, Inc. v. Graves, 250 Kan. 520, Syl. ¶ 1, 826 P.2d 1363 (1992) (“Interpretation of a statute is a necessary and inherent function of an agency in its administration or application of that statute.”). Additionally, whether a “person,” as defined by K.S.A. 50-1117(f), is exempt from the KCSOA also requires the interpretation of statute.
Here, the OSBC placed CLA and Persels on notice that they might be violating the KCSOA. Without first exhausting administrative remedies that could have granted relief on some ground before going to court, the Petitioners filed a petition for declaratory judgment in the district court. In the petition, the Petitioners did not attack the exemption itself; instead, they claimed the OSBC’s interpretation of the exemption statute violated the separation of powers doctrine and infringed on the Kansas Supreme Court’s exclusive authority to regulate the practice of law in Kansas.
We agree with the district court that individuals who are licensed to practice law in Kansas are exempt from regulation by the OSBC. The OSBC exemption does not apply to a limited liability company or any other entity that is not licensed to practice law by the Kansas Supreme Court. See K.S.A. 50-1116(b).
The Petitioners’ ultimate goal is to obtain an exemption from the OSBC’s oversight. This is a challenge to the OSBC’s interpretation and application of the exemption statute administered by the OSBC, not a challenge to the constitutionality of tire statute itself. Thus, before the Petitioners can bring a declaratory judgment action, they must first follow the procedural rules set forth in the KAPA and the KJRA to exhaust their available administrative remedies. See Zarda v. State, 250 Kan. 364, 371-72, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992) (although the Board of Tax Appeals had no power to resolve constitutional issues, the court upheld the district court’s dismissal for failure to exhaust administrative remedies).
Moreover, the Petitioners’ administrative remedies in this case are not inadequate. See K.S.A. 2011 Supp. 77-612(d). In their declaratory judgment action, the Petitioners sought a declaration that the OSBC lacked “statutory authority over the legal practices of the [Petitioners] based on the attorney exemptions stated in K.S.A. [] 50-1116(b)” and an injunction against the OSBC. Nevertheless, the requested relief was available through the KJRA when properly invoked through judicial review. See K.S.A. 77-622(b). Because the relief sought by the Petitioners was available in the KJRA, the Petitioners’ exclusive remedy was through the KJRA. Zarda, 250 Kan. at 371; see Midwest Crane & Rigging, Inc. v. Kansas Corporation Comm'n, 38 Kan. App. 2d 269, 271-72, 274-75, 163 P.3d 1244 (2007).
Petitioners are required to exhaust their administrative remedies before proceeding with a Chapter 60 declaratory judgment action. The district court did not err in finding that the Petitioners failed to exhaust their administrative remedies.
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Green, J.:
Austin J. Behrendt pled no contest to a felony charge of theft. The trial court imposed a guidelines sentence of 6 months in prison. The trial court further ordered that Behrendt serve a 45-day jail sanction followed by 12 months of probation. In addition, the trial court ordered restitution to the victim in the amount of $7,870.55. On appeal, Behrendt contends that the trial court erred in relying on the retail value of beer, a perishable good, instead of the wholesale value in calculating the amount of restitution. We agree. Accordingly, we reverse, vacate the amount of restitution awarded, and remand to the trial court to determine the amount of restitution owed based on the wholesale cost of the crime victim’s inventory.
In addition, Behrendt asserts that the trial court erred in ordering him to serve 45 days in jail as a condition of probation. We disagree and affirm this issue. Accordingly, we affirm in part, reverse in part, vacate in part, and remand with directions.
Behrendt was employed by City Beverage, a beer distributor located in Hutchinson, Kansas. Behrendt was charged under an amended complaint with felony theft for stealing beer from City Beverage valued between $1,000 and $25,000 in violation of K.S.A. 21-3701(a)(2). He was also charged with conspiracy to commit felony theft and with selling liquor without a license, a misdemeanor. Behrendt later pled no contest to one count of felony theft. In exchange for Behrendt’s no contest plea, the State agreed to dismiss the other charges and agreed to recommend that Behrendt receive probation without jail time.
At Behrendt’s plea hearing, the trial court advised Behrendt about the consequences of entering a no contest plea and told him that it was not bound to follow his plea agreement with the State. Behrendt stated that he understood the court was not bound by the agreement, and he reiterated his wish to plead no contest to the felony theft charge. At sentencing, the State complied with the plea agreement and recommended that the trial court sentence Behrendt to probation instead of jail. The State also requested that Behrendt pay City Beverage restitution in the amount of $7,870.55 as a condition of his probation.
The trial court imposed an underlying sentence of 6 months in prison and placed Behrendt on probation for 12 months. As conditions of Behrendt’s probation, the trial court required him to pay $7,870.55 in restitution to City Beverage and to serve 45 days in jail. The trial court, however, allowed Behrendt the right to request a restitution hearing within 30 days to challenge its restitution cal culation. Within the required 30 days, Behrendt filed a motion to determine restitution.
The trial court held a hearing to determine the appropriate amount of restitution. Ann Bush, co-owner of City Beverage, testified that her company suffered a loss of $7,870.55 because of Behrendt’s theft. She calculated tire loss by using the retail price that City Beverage would have received from its customers for the stolen beer.
At the conclusion of the restitution hearing, the parties argued their opposing positions on the amount of restitution Behrendt should be required to pay for his crime. The State insisted the court should order Behrendt to pay restitution totaling $7,870.55, which was the full amount requested by City Beverage. Behrendt disagreed, however, and argued that he should be required to pay only City Beverage’s wholesale cost of the stolen inventory. Agreeing with the State, the trial court ordered Behrendt to pay $7,870.55 in restitution for City Beverage’s retail price of the beer. The trial court explained that $7,870.55 was the appropriate amount of restitution because City Beverage was “in business and they did lose tire profit and plus the . . . actual costs of the beer.”
Did tl%e Trial Court Em~ in Relying on the Retail Value of Beer Instead of the Wholesale Value of the Beer when Calculating Restitution?
Behrendt argues that the trial court erroneously ordered him to pay City Beverage the retail value of their beer, which resulted in a windfall to the beer distributor. Behrendt maintains that he should have to pay restitution only for City Beverage’s actual cost of beer, not for the beer’s retail value.
Neither party disputes that the trial court could order Behrendt to pay restitution as a condition of his probation under K.S.A. 21-4610(d)(1), which provides in pertinent part:
“(d) In addition to any other conditions of probation, . . . the court shall order the defendant to comply with each of the following conditions:
(1) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, in an amount and manner determined by the court and to die person specified by the court. . . .”
See also State v. Phillips, 45 Kan. App. 2d 788, 794, 253 P.3d 372 (2011) (recognizing “[t]he appropriate amount of restitution is the amount required to reimburse the victim for the actual loss suffered”) (citing State v. Hunziker, 274 Kan. 655, 664, 56 P.3d 202 [2002]); State v. Casto, 22 Kan. App. 2d 152, 154, 912 P.2d 772 (1996) (property crime victim entitled to restitution only up to amount of his or her actual loss).
Kansas appellate courts have held that fair market value (FMV) is tire common standard for calculating restitution for a victim’s loss of, or damage to, an item because of a defendant’s crime. See, e.g., State v. Maloney, 36 Kan. App. 2d 711, 714-15; 143 P.3d 417, rev. denied 282 Kan. 794 (2006); State v. Baxter, 34 Kan. App. 2d 364, 365, 118 P.3d 1291 (2005); State v. Rhodes, 31 Kan. App. 2d 1040, Syl. ¶ 2, 77 P.3d 502 (2003).
When considering restitution, this court has defined FMV as “the price that a willing seller and willing buyer would agree upon ... in an arm’s-length transaction.” Baxter, 34 Kan. App. 2d at 366. When FMV cannot readily be determined, a court may consider other factors, such as the item’s purchase price and condition, so long as the valuation is based on reliable evidence that yields a defensible restitution figure. Maloney, 36 Kan. App. 2d 711, Syl. ¶ 5.
When discussing orders of restitution under K.S.A. 21-4610(d)(1), our Supreme Court has declared:
“The amount of restitution and manner in which it is made to tire aggrieved party is to be determined by the court exercising its judicial discretion and is subject to abuse of discretion review. [Citation omitted.] ‘Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court’s determination of restitution must be based on reliable evidence which yields a defensible restitution figure.’ [Citation omitted.] Because [K.S.A. 21-4610(d)(1)] limits the imposition of restitution to ‘damage or loss caused by the defendant’s crime,’ the question of whether an item claimed by the aggrieved party as loss qualifies for inclusion in a restitution order because it was caused by the defendant’s offense is a question of law. [Citation omitted.]” Hunziker, 274 Kan. at 660.
Behrendt challenges the trial court’s legal conclusion that he should pay restitution in the amount of the beer’s retail value. In particular, Behrendt argues that City Beverage’s expected profits for the beer that he was convicted of taking did not qualify for inclusion in tire restitution order. This court has de novo review over that question of law. See Hunziker, 274 Kan. at 660.
Behrendt’s first argument requires this court to determine the FMV of City Beverage’s beer inventory. As previously mentioned, the FMV for an item is “the price that a willing seller and a willing buyer would agree upon... in an arm’s length transaction.” Baxter, 34 Kan. App. 2d at 366. At the restitution hearing, the co-owner of City Beverage (Bush) equated the missing beer’s FMV with its retail value. The relevant portion of the transcript reads as follows:
“[DEFENSE COUNSEL]: What you’re trying to do is to get your profit as part of the loss; isn’t that true?
“[WITNESS BUSH]: That’s correct.
“[DEFENSE COUNSEL]: And you never sold the beer that you have missing; did you?
“[WITNESS BUSH]: No, it was lost. I could not sell it.
“[DEFENSE COUNSEL]: So you never got the profit; did you?
“[WITNESS BUSH]: That’s correct.
“[DEFENSE COUNSEL]: And since you didn’t get the profit, your loss was what you paid for it; isn’t that correct?
“[WITNESS BUSH]: Not the way I see it.”
Generally, our appellate courts have ruled that an award of restitution that exceeds an item’s FMV constitutes an abuse of discretion. See, e.g., Hunziker, 274 Kan. at 664; Baxter, 34 Kan. App. 2d at 366; Rhodes, 31 Kan. App. 2d at 1042; Casto, 22 Kan. App. 2d at 154; State v. Hinckley, 13 Kan. App. 2d 417, 419, 777 P.2d 857 (1989).
On appeal, Behrendt argues that the trial court erred in relying on the beer’s retail value instead of its wholesale value when, calculating restitution. In other words, Behrendt maintains that the trial court erred because it awarded City Beverage restitution for its missing beer in excess of FMV. In support of his argument, Behrendt relies on State v. Hall, 45 Kan. App. 2d 290, 247 P.3d 1050 (2011). Behrendt contends that Hall is directly on point with the facts of this case. The State does not dispute this, but instead relies on Supreme Court Rule 8.03(i) (2011 Kan. Ct. R. Annot. 69) to argue that Hall is inapplicable.
Supreme Court Rule 8.03(i), in pertinent part, reads as follows:
“The timely filing of a petition for review shall stay the issuance of the mandate of tire Court of Appeals. Pending tire determination of the Supreme Court on tire petition for review or during the time in which to file a petition for review, the opinion of tire Court of Appeals is not binding on the parties, or on the district courts. Any interested person who wishes to cite a Court of Appeals opinion for persuasive authority before the mandate has issued shall note in the citation that the case is not final and may be subject to review or rehearing. If a petition for review is granted, the decision or opinion of the Court of Appeals has no force or effect, and the mandate shall not issue.”
Here, our Supreme Court granted a petition for review in Hall on September 23,- 2011. So, the State is correct in that the Hall court’s decision has no force or effect in this case. But even though Hall is not binding precedent, this court can draw guidance from its reasoning.
In holding that the trial court had erred when it based restitution on the inventory’s retail value, instead of its wholesale cost, the Hall court relied on Illinois Cent. R. Co. v. Crail, 281 U.S. 57, 50 S. Ct. 180, 74 L. Ed. 699 (1930). In that case, the United States Supreme Court had to decide whether the plaintiff should be compensated based on the wholesale market price of coal or should be compensated on the retail market price. The plaintiff, an established coal dealer, purchased at wholesale prices a carload of coal at $5.50 per ton plus $3.30 per ton freight charges, which it proposed to resell for $13 per ton to its retail customers. The rail carrier of the plaintiff s coal cargo arrived at the delivery point with a shortage of 5,500 pounds of coal. When the delivery was made, the plaintiff had not contracted to sell any of the coal and intended to simply add the coal to his current inventory. The plaintiff sued, maintaining that it should be awarded the $13 per ton retail value of the undelivered coal. Noting that the plaintiff purchaser “lost no sales by reason of [the delivery shortage],” and finding that plaintiff could have purchased the missing coal at the $5.50 per ton wholesale price, the Court awarded damages based on the wholesale market price. See 281 U.S. at 62-64.
Like the plaintiff in Illinois Central, City Beverage purchased its inventory at an amount less than the retail value. The trial court’s ruling incorrecdy identified the seller and the buyer in the arms-length transaction as City Beverage and the entities that it pur chased its beer from, not the entities that purchase beer from City Beverage. In other words, the actual loss suffered here is the FMV (the wholesale market price) that City Beverage, as the victim, paid for the items taken by Behrendt, not the amount City Beverage would have received had its customers been able to purchase that inventory at retail prices.
Thus, when the trial court awarded retail prices to City Beverage it did not produce a fair result because it allowed City Beverage to receive a windfall. Behrendt was only responsible for restitution for the loss suffered by City Beverage as a result of his crime. Any award of restitution that exceeds the beer’s FMV constitutes an abuse of discretion. See, e.g., Hunziker, 274 Kan. at 664. Consequently, the trial court erred in basing restitution on the inventory’s retail market value, as opposed to City Beverage’s wholesale cost of the beer inventory.
The 10th Circuit Court of Appeals uses a similar approach when determining the value of stolen merchandise. See U.S. v. Cummings, 798 F.2d 413 (10th Cir. 1986). In that case, Cummings was convicted in die trial court of selling a stolen tractor in violation of 18 U.S.C. § 2315. On appeal, Cummings challenged the court’s value calculation of the stolen tractor. In reaching its decision, the 10th Circuit noted the following rules for calculating “market value”:
“The market value of stolen property ... is that price which a willing buyer would pay a willing seller either at the time and place that the property was stolen or at any time during the receipt or concealment of the property. [Citations omitted.] When merchandise is stolen from a merchant, market value is the sales price the merchant would have obtained for tire merchandise. [Citation omitted.] Thus, where the victim is a retail merchant, the market value is the retail sales price, [citation omitted] and where the victim is a wholesale merchant, the market value is the wholesale price. [Citations omitted.]” Cummings, 798 F.2d at 416.
In this case, City Beverage, as a beer distributor, would qualify as a wholesale merchant. Indeed, Bush testified that her business was a beverage wholesaler and that her business primarily sold Anheuser-Bush products. This would indicate that the market value of its stolen beer would be its wholesale price. In other words, City Beverage’s market value is the amount that it paid for its beer inventory, not the amount that it would receive by selling that inventory.
Assuming arguendo that City Beverage is entitled to seek lost profits, its evidence as to lost profits is too speculative. To establish the dollar value of its loss, Bush testified that she calculated the loss by using the retail price that City Beverage would have received from its customers for the stolen beer. Yet, City Beverage used current retail pricing for the stolen beer instead of the retail pricing that it charged when the beer was stolen. Moreover, City Beverage failed to disclose what its actual costs were for die stolen beer. In addition, City Beverage did not identify any prospective purchasers for the stolen beer at prices like those paid by customers when the beer was stolen. Finally, there was no evidence that City Beverage would have had customers for the beer when it was stolen.
Behrendt’s responsibility for the loss of the beer did not relieve City Beverage of its obligation to show that there were customers for the stolen beer. City Beverage retained the responsibility to produce sufficient evidence of its lost profits. Although mathematical precision was not required in calculating lost profits, a restitution award must yield a defensible figure in the evidence. We conclude, given the absence of the price paid for the beer and what City Beverage’s customers were willing to pay for the beer had it not been stolen, that the evidence of lost profits was speculative. Hence, the trial court erred in awarding lost profits to City Beverage.
Did the Trial Court Err in Ordering Behrendt to Serve 45 Days in Jail as a Condition of His Probation?
Next, Behrendt contends that the trial court erred in ordering him to serve 45 days in jail as a condition of his probation. The State refutes Behrendt’s contention, arguing that the trial court did not err in ordering jail time as a condition of Behrendt’s probation.
This issue requires this court to determine if the trial court abused its discretion in ordering Behrendt to serve jail time as a condition of his probation. In felony cases, K.S.A. 21-4610(c)(14) allows a court to impose up to a 60-day jail term as a condition of probation.
“A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive. [Citation omitted.] When a reviewing court determines that no reasonable person would agree with the trial court’s decision, tiren an abuse of discretion will be found. [Citation omitted.]” State v. McCloud, 257 Kan. 1, 9, 891 P.2d 324, cert. denied 516 U.S. 837 (1995j.
Behrendt fails to cite to any case to support his argument that the trial court abused its discretion in ordering him to serve 45 days in jail as a condition of probation.-Behrendt merely cites to the general rule, involving conditions of probation, contained in State v. Lumley, 267 Kan. 4, 977 P.2d 914 (1999). Lumley states:
“A condition of probation will not be held invalid unless it (1) has no reasonable relationship to the crime of which die offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which die defendant was convicted or to future criminality.” 267 Kan. at 14.
Here, Behrendt pled no contest to felony theft. The jail term that the trial court imposed on Behrendt is expressly permitted by K.S.A. 21-4610(c)(14), authorizing the court to impose up to 60 days of jail time as a condition of probation. Behrendt bears the burden of showing that the trial court abused its discretion. See State v. Vanderveen, 259 Kan. 836, 843, 915 P.2d 57 (1996).
Behrendt’s appellate brief, however, contains a weak inference that the trial court’s imposition of his jail sentence was a result of partiality, prejudice, oppression, or corrupt motive. Behrendt’s appellate brief notes that the trial court was personally familiar with the owners of the business and was personally familiar with the business’ operations. Behrendt argues, “[i]t appears the lower court considered his personal knowledge of the victim and their business in deciding the jail sentence of 45 days.”
But Behrendt does not argue that the trial court’s jail sentence condition was a result of partiality, prejudice, oppression, or corrupt motive. See McCloud, 257 Kan. at 9. Indeed, Behrendt’s brief fails to cite to McCloud or to any other caselaw containing this requirement. In fact, Behrendt fails to raise any claim in his brief that the trial court’s jail sentence condition was a result of partiality, prejudice, oppression, or corrupt motive. An issue not briefed is deemed abandoned. State v. McCaslin, 291 Kan. 697, 734, 245 P.3d 1030 (2011).
Even if Behrendt had briefed this argument, his argument would still fail. “Comments by the sentencing judge which are based entirely on evidence presented to the court in its judicial capacity do not necessarily prove that the sentence imposed was improper or reflect partiality, prejudice or corrupt motive by the judge.” McCloud, 257 Kan. at 7.
At sentencing, the trial judge commented that his best friend used to own City Beverage. The trial judge also stated that he was familiar with City Beverage’s business practices in response to defense counsel’s argument that Behrendt would lose his job if he was sentenced to jail time. The trial judge’s comments read as follows:
“Well, you know, when he was working for these people they throw those kegs down around there all day long. I know about that business, and I know what it entails and how much work goes into it, and you’ve got their trust involved. And, and that thing started out with Norman Leeway and Joe Maman and that business has been here ever since. A good business in town.”
The trial court’s comments concerning its knowledge of City Beverage’s business practices do not indicate that it imposed Behrendt’s jail sentence condition because of partiality, prejudice, oppression, or corrupt motive. It would be a logical non sequitur to conclude that because the trial court knew City Beverage’s former owners and knew details about how City Beverage operated that therefore the trial court’s decision was based on partiality, prejudice, oppression, or a corrupt motive. Because Behrendt has failed to show that the trial court’s actions were partial, prejudicial, oppressive, or corrupt, his argument is fatally flawed.
Affirmed in part, reversed in part, vacated in part, and remanded with directions.
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Greene, C.J.:
David A. Barker, assignor of an oil and gas lease to RAMA Operating Company, Inc. (RAMA), appeals the district court’s denial of his motion for summary judgment as well as the judgment against him after bench trial for damages totaling $13,356.44 for breach of his covenant to warrant and defend title to the interest conveyed. Concluding RAMA failed to establish at summary judgment that there was a lawful adverse claim against the interest conveyed, there was no actionable breach of the covenant of warranty of title. Thus, we reverse and remand with directions to enter summary judgment in favor of Barker.
Factual and Procedural Background
Barker obtained an oil and gas lease from B.F. and Eleanor Babb on May 6, 1996, covering lots 1 and 2 that are the west half of the northwest quarter of Section 30, Township 21 South, Range 8 West, in Rice County. A previous lease of this tract (the Tyrell lease) had been unitized with other leases to form a 160-acre gas unit apparently known as the “Fitzgerald Gas Unit.” The lessee of the Tyrell lease, Bear Petroleum, executed and there was recorded a release of its right, title, and interest in the Tyrell lease on October 3, 1996. A second release of its interest in the Tyrell lease was requested by Barker and executed by Bear Petroleum on March 1, 2001, and was subsequently recorded, but there is a dispute as to its validity.
Within the primary term of Barker s Babb lease and on May 6, 2001, Barker obtained an identical lease from the Babbs — except the primary term was specified as 2 years. Based on information in the record, this lease was recorded on February 7,2001. Neither party to this litigation has noted, argued, or raised an issue in district court or on appeal surrounding the rather strange sequence of the second lease acquisition, the recordation thereof, and the assignment at issue.
After obtaining a supplemental drilling title opinion on the acreage, on April 9, 2001, Barker executed an assignment conveying to RAMA his right, title, and interest to this oil and gas lease. On that date, the records of the Kansas Corporation Commission and Rice County Assessor s Office show there had been no production by the only well on the Fitzgerald Gas Unit for at least 23 months. Although a contract between Barker and RAMA required only an assignment “without warranty,” the Barker assignment contained a covenant of warranty of title, which we quote later in this opinion.
In July 2001, when RAMA’s drilling rig contractor appeared on the lease property to commence drilling operations, Robin Austin of RAMA became aware of potential adverse claims to the title through a landowner. He contacted both Barker and R.A. “Dick” Schremmer of Bear Petroleum, Inc., the operator and prior lessee of this acreage under the old Tyrell lease. Barker refused comment and claimed he told RAMA to contact his attorney, but Schremmer told RAMA that Bear Petroleum had a valid lease on “the property” and that a prior release of the oil and gas lease covering this acreage and executed by Schremmer was a mistake. Schremmer also told RAMA that he had instructed Barker not to record the mistaken release, but Barker claimed there was no fraudulent recordation.
Based on the information from Schremmer, RAMA terminated drilling operations and purportedly incurred damages “in the form of expenses in the commencement of drilling operations” totaling $13,356.44. Other facts embellished this story at time of trial, but our initial and determinative focus is on the summary judgment proceedings.
After RAMA filed its petition alleging breach of warranty of title, Barker sought summary judgment on the ground that RAMA caused its own damages when it precipitously terminated drilling operations although no lawful adverse claim was ever established to the oil and gas lease assigned to RAMA. The district court denied the motion because the court found there were two genuine issues of material fact preventing judgment as a matter of law: (1) whether Schremmer executed the release of his prior lease by mistake; and (2) exhibits purporting to show “differing amounts of production at different times” on a unit including the subject lease and another lease.
After a different district judge was assigned to the case, Barker s motion for reconsideration of his motion for summary judgment was denied, and the matter was set for bench trial. After trial, the court found that RAMA had sustained its burden to establish a breach of the covenant of warranty of title and awarded it damages in the amount claimed.
Barker appeals.
Standards of Review
Our standard of review for a district court’s grant or denial of a motion for summary judgment is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
Did the Court Err in Denying Barker’s Motion for Summary Judgment?
On appeal, Barker initially argues that his motion for summary judgment should have been granted because the only material fact dispute was created by RAMA’s false affidavit submitted in opposition to the motion. That affidavit attempted in conclusoiy fashion to dispute the production history provided in Barker’s uncontroverted fact statements and served to create what the district court believed was a genuine issue of fact precluding summary judgment.
In Kansas, Breach of the Covenant of Warranty of Title Requires Evidence of a Lawful Adverse Claim,
Barker argues that the lack of a condition precedent — i.e., no previous lawful claim against defendant or against plaintiff that Barker refused to defend under his covenant of warranty in the assignment — is fatal to RAMA’s claim of breach of warranty. We generally agree.
In Kansas, there can be no breach of a covenant of title in a warranty deed unless the third party’s claim is superior to the title or possessory rights of the grantee. See Bedell v. Christy, 62 Kan. 760, 763, 64 P. 629 (1901); Lewis v. Jetz Service Co., 27 Kan. App. 2d 937, Syl. ¶ 1, 9 P.3d 1268 (2000). In the typical wording of a covenant of warranty, the grantor covenants to warrant and defend the title conveyed by the deed against all lawful claims which may be asserted against it. Lewis, 27 Kan. App. 2d at 938 (quoting 14 Powell on Real Property § 81A.06[2][d][i], p. 81A-121 [1999]); see K.S.A. 58-2203. A breach does not occur without a disturbance of possession and eviction under an adverse title which existed at the time of the conveyance.” 27 Kan. App. 2d at 938. Our Supreme Court stated that “ ‘[a] covenantee who, voluntarily or without suit, yields to an alleged paramount title or claim assumes the risk of its turning out not to be so/ ” Wood v. Stewart, 158 Kan. 729, 732, 150 P.2d 331 (1944).
Kansas law is consistent with the majority view, which holds that “[t]itle defects are not actionable as a breach of warranty unless the grantee has been compelled to yield to such title, or is in a situation requiring him or her to do so presently, as a matter of legal duty.” 20 Am. Jur. 2d, Covenants, Etc. § 63. Further, “[a] covenantee cannot claim a breach of warranty by reason of the existence of an outstanding title in a third party, where such title is not paramount.” 20 Am. Jur. 2d, Covenants, Etc. § 66. In fact, many courts have even held that eviction is requisite before there is a breach of covenant of warranty or of quiet enjoyment. See 4 Williams & Meyers, Oil and Gas Law, § 685.1, pp. 411-12 (2011). Our court quoted a respected treatise on this subject in Lewis:
“ ‘The general effect of a covenant of warranty is that the grantor agrees to compensate the grantee for any loss which the grantee may sustain by reason of a failure of the title which the deed purports to convey, or by reason of an encumbrance on the title. In the typical wording of such a covenant, the grantor covenants to warrant and defend tire title conveyed by the deed against the lawful claims which may [be] asserted against it. The covenant may be either expressly stated, or it may be implied by the words used or type of deed employed.’ 14 Powell on Real Property, § 81A.06(2)(d)(i), p. 81A-121 (1999).” 27 Kan. App. 2d at 938.
RAMA argues that all that must be shown “is a failure of performance as warranted” and that “a specific defect need not be proven.” RAMA cites two cases for this proposition. The first discussed the breach of warranties in a construction contract. Broce O’Dell Concrete Products, Inc. v. Mel Jarvis Constr. Co., 6 Kan. App. 2d 757, 634 P.2d 1142 (1981). The second discusses express warranties accompanying the sale and installation of a transmission. Scheuler v. Aamco Transmissions, Inc., 1 Kan. App. 2d 525, 571 P.2d 48 (1997). RAMA does not explain how these cases are relevant to a grantor’s covenant of title. These cases address warranties in the sale of goods and services and have little if any application to warranty of title. They appear to be inconsistent with Kansas caselaw on warranty of title.
RAMA also argues that the specific language of warranty in the assignment form required Barker to defend the title even absent a lawful claim. RAMA argues that the warranty against “adverse claims” “is all encompassing and not limited in any way” and is distinguishable from “general and limited warranties.” According to RAMA, because of the “all adverse claims” language in Barker’s warranty, it should not be required to prove that the adverse claims presented by Bear Petroleum are legally sustainable. We disagree.
The specific warranty language provision contained in the assignment form signed by Barker provided:
“And for the same consideration the Assignor covenants with the Assignee, its or his heirs, successors or assigns: That the Assignor is the lawful owner of and has good title to the interest above assigned in and to said lease, estate, rights and property, free and clear from all liens, encumbrances, or adverse claims; That said lease is a valid and subsisting lease on the land above described, and all rentals and royalties due thereunder have been paid and all conditions necessary to keep the same in full force have been duly performed, and that the Assignorwill warrant and forever defend the same against all persons whomsoever lawfully claiming or to claim the same.” (Emphasis added).
This language is not unique, as the form used appears from the record copy to be a standard Kansas Blue Print assignment form routinely utilized in Kansas for these purposes. The precise language is found in the “Typical Forms and Agreements” section of 2 Brown, The Law of Oil and Gas Leases, Assignment of Oil and Gas Lease with General Warranty §18.03(2), p. 18-168 (2d ed. 2009) (with no alternative form provided), and in Kuntz, Kansas Law of Oil and Gas, p. 232 (1983) (reflecting Form 694 of the American Association of Petroleum Landmen). The precise lan guage in the warranty of title provision in Wood was not quoted in the court’s opinion, but the court stated that for purposes of the appeal it was proceeding on the assumption that the covenants found in the assignment warranted title and ownership. 158 Kan. at 732. Similarly, courts have not focused on precise language in finding that any such covenant is restricted to warranting and defending lawful claims. In Archer v. Eiland, No. 02-5026, 2003 WL 1875388, at *1-3 (10th Cir. 2003) (unpublished opinion), the Tenth Circuit Court of Appeals noted that die deed contained a covenant of warranty and quiet enjoyment, and in Lewis, this court discussed the warranty of title in a warranty deed. 27 Kan. App. 2d at 938. We are not convinced that the language of Barker’s assignment varies materially from language employed, construed, and applied in warranty of title matters in Kansas and beyond.
More importantly, our examination of the language employed here defies RAMA’s argument that a lawful claim is not required to trigger Barker’s covenant to defend the title. RAMA’s reading of the provision is a distortion of its plain meaning. Barker covenanted that his interest was “free and clear” of “adverse claims.” But his promise to “warrant and forever defend” was restricted to persons “lawfully claiming or to claim” an adverse interest. Thus, in the absence of a lawful adverse claim, Barker had no duty to defend.
We conclude and hold that in the absence of a lawful claim by Bear Petroleum to the interest conveyed to RAMA, Barker had no duty to defend and did not breach his covenant of warranty of title. We must thus examine the record (and specifically the uncontroverted facts at summary judgment) to determine whether the adverse claim of Bear Petroleum was, in fact, lawful, or whether RAMA voluntarily and without suit yielded to a mere allegation of paramount title or claim, taking the risk that the adverse claim might not prove lawful.
Analysis of Uncontroverted Facts at. Summary Judgment
Some additional background information is necessary to frame this issue: RAMA contended in its petition that the warranty of title was breached by a claim that the leased acreage was “subject to an oil and gas lease as part of a unitized producing gas unit which was held by production.” In his defense of this argument, Barker’s summaiy judgment motion focused on and supported his position that the underlying lease had expired by lack of production. His uncontroverted fact statements included the following facts particularly relevant to the issue on appeal:
“3. The Tyrell lease was originally released of record by the assignee and owner thereof, Bear Petroleum, Inc., which executed and recorded a Release of'Oil and Gas Lease on October 3,1996. Exhibit 3, Release of Oil and Gas Lease.
“4. Defendant requested and received from Bear Petroleum, Inc. a second Release of Oil and Gas Lease that was recorded on March 5, 2001. Exhibit 4, Release of Oil and Gas Lease.
“6. Defendant obtained title opinions covering the Babb lease demonstrating that he had good and merchantable title when he assigned the Babb lease to plaintiff. Exhibit 6, Drilling Opinions.
“7. The gas unit did not produce any MCF’s of gas from March 1993 th[r]ough October 1996, except 26 MCF’s in November 1993 (3 years, 8 months) May 1998 through August 1998 (4 months), nor January 1999, except 139 MCF’s April 1999, th[r]ough March 2001 (2 years, 3 months). Exhibit 7, Declaration of David A. Barker [attaching monthly production history from Kansas Corporation and Rice County Assessor’s Office].
“8. According to the oil and gas Renditions filed by Bear Petroleum, Inc., the gas unit did not produce gas in paying quantities from 1993 through 1996. The yearly MCF’s were:
• 1993 606 (January & February)
• 1994 0
• 1995 0
• 1996 1805 (November & December)
“Exhibit 8-Rice County, Kansas Renditions.
“9. The TyreU/Fitzgerald leases require that there be production of oil or gas in the secondary term or the leases terminate. Exhibit 9, Oil and Gas Leases.”
In response to these proposed uncontroverted facts, RAMA controverted each of these statements as follows:
“3. Controverted. This statement is not properly referenced to any part of the record herein or an affidavit with the Motion. The plaintiff denies that the lease held by Bear Petroleum Inc., was effectively released. (. . . Affidavit of Robin L. Austin . . . “Exhibit A” ... .)
“4. Controverted. This statement is not properly referenced to any part of the record herein or any affidavit filed with the Motion. Further, the record establishes that any such release was unintentional and withdrawn before it was re corded or used by the Defendant to misrepresent the title to Plaintiff. Further, the record shows that after a release was signed and before it was recorded, the party signing the release, Dick Schremmer of Bear Petroleum, Inc., notified the Defendant that the release was unauthorized and unintentional and that its recording or use by tire Defendant was prohibited. (... Affidavit of Robin L. Austin ....)
“6. Controverted. This statement is not properly referenced to any part of the record herein or an affidavit filed with the Motion. The title opinions do not demonstrate good and merchantable title and were prepared prior to the actions of the Defendant in refusing to follow tire direction of R.A. “Dick” Schremmer that the Defendant not file or utilize the release and in not later disclosing to the Plaintiff tire known title defects and adverse claims. (. . . Affidavit of Robin L. Austin . . . .)
“7. Controverted. This statement is not properly referenced to any part of the record herein or any affidavit filed with tire Motion. The record herein establishes drat the production history cited is incorrect and in error. (. . . Affidavit of Robin L. Austin . . . .)
“8. Controverted. This statement is not properly referenced to any part of the record herein or any affidavit filed with the Motion. The record herein establishes that the production history cited is incorrect and in error. (.. . Affidavit of Robin L. Austin . . . .)
“9. Controverted. The statement is not properly referenced to a part of the record herein. This is not a statement of fact, but rather a conclusion of law which is incorrect. The alleged conclusion fails to take into account the Amendment and Modification and Pooling Declaration which amended die leases. Both leases contain shut-in gas royalty provisions with die Tyrell lease providing . . . [express language of shut-in royalty provision omitted].”
RAMA also stated some additional proposed uncontroverted facts including details of Austin’s long-distance phone call with Schremmer, the conversation between Austin and Barker, the fact that Bear Petroleum was holding some royalties owed to the Babbs, the expenses incurred in commencing drilling operations, and another general denial of the accuracy of Barker’s production history on the Fitzgerald Gas Unit.
First, we must address whether RAMA successfully controverted either the facts regarding the state of the title or the purported production histoiy presented by Barker.
Turning first to the title documents, tire record on appeal reflects that actual copies of the releases bearing recordation data were attached to Barker’s memorandum in support of his summary judg ment motion, and copies of title opinions obtained by Barker in early 1996 and in early 2001 were also attached as exhibits to the memorandum. Although an affidavit of Austin was cited by RAMA in support of its controversion of these facts, RAMA does not and cannot successfully controvert the existence of the documents except to the extent that it attempts to cloud the effect of the second release in citing a conversation with Schremmer.
Examining RAMA’s attempt to controvert the production history, we find it to be a naked conclusory denial of Barker’s history without any factual support whatsoever except a reference to a similar general denial contained in RAMA’s response to a request for admissions. K.S.A. 60-256(e) requires that the nonmoving party in a summary judgment proceeding must “set forth specific facts showing that there is a genuine issue for trial.” This is not merely a practice or a rule, this requirement is a statutory mandate. K.S.A. 60-256(e) provides in part:
“When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse partifs response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against tire adverse party.” (Emphasis added.)
This statute clearly provides that RAMA was required to respond with specific facts showing that there was a genuine issue for trial. Here, RAMA merely stated that production was not as represented by Barker, but it provided no specific facts beyond this conclusory statement. Caselaw in both Kansas state and federal courts have found that conclusory affidavits are insufficient to establish contested facts for summary judgment purposes. See Korytkowski v. City of Ottawa, 283 Kan. 122, 132, 152 P.3d 53 (2007) (finding that summary judgment for defendants was appropriate in inverse condemnation case when “the defendants presented ample evidence to support the reasonableness of the projects, and plaintiffs presented no evidence to rebut it, beyond their own unsupported and conclusory affidavits”); Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 284-85, 261 P.3d 943 (2011) (finding expert’s conclusory opinions regarding county jail’s policies for dealing with suicidal inmates contained in summary judgment affidavit were insufficient to create a genuine issue of material fact in negligence action); Sherwin-Williams Co. v. Cornerstone Painting, Inc., No. 95,262, 2006 WL 2864786, at *2-3 (Kan. App. 2006) (unpublished opinion) (distinguishing between conclusory statements and substantive allegations contained in affidavit); see also KMMentor, LLC v. Knowledge Mgmt. Professional Soc., 712 F. Supp. 2d 1222, 1251 (D. Kan. 2010) (finding conclusory affidavit insufficient to establish contested fact for summary judgment purposes). Thus, we conclude that Austin’s affidavit was insufficient to establish a genuine issue of material fact regarding the relevant production history from the lease of the gas unit in question.
Analysis of Legal Effect of Releases of Record Coupled with Production History on the Gas Unit Containing the Subject Lease
Next we must address whether the Barker production history and the Bear Petroleum releases were alone sufficient to establish that the previous lease on the acreage had expired. RAMA argues on appeal that periods of nonproduction alone do not establish lease expiration, but rather “a proper analysis requires a weighing of the period of cessation of production together with evidence of the lessee’s intent to resume production and of the efforts or lack of efforts by the lessee to resume production of oil or gas,” citing Wrestler v. Colt, 7 Kan. App. 2d 553, 644 P.2d 1342 (1982).
We certainly do not take issue with the Wrestler holding, but we find in RAMA’s response to the summary judgment only naked legal arguments that there should be a “weighing of the period of cessation together with evidence of Lessee’s intent to resume production.” No facts were alleged by RAMA to support any such argument. RAMA also made legal arguments that “shut-in gas payments could have been made to extend the leases,” but — again— no facts were alleged by RAMA to suggest that the well generally qualified as a shut-in well under Kansas law. See Levin v. Maw Oil & Gas, 290 Kan. 928, 945, 234 P.3d 805 (2010).
We begin with the elementary legal principles guiding our analysis: (1) When the primary term of an oil or gas lease has expired and the lease is being held upon the condition of continued production only, all rights under the lease terminate if and when production of oil or gas in paying quantities ceases. Kelwood Farms, Inc. v. Ritchie, 1 Kan. App. 2d 472, Syl. ¶ 2, 571 P.2d 338 (1977); (2) a mere temporary cessation of production because of necessary developments or operation does not result in the termination of such lease or the extinguishment of rights acquired under its terms. Eichman v. Leavall Resources Corp., 19 Kan. App. 2d 710, 713-14, 876 P.2d 171, rev. denied 255 Kan. 1001 (1994); and (3) a shut-in royalty clause in an oil and gas lease enables a lessee, under appropriate circumstances, to keep a nonproducing lease in force by the payment of the shut-in royalty. See Levin, 290 Kan. 928, Syl. ¶¶ 3-5; Tucker v. Hugoton Energy Corp., 253 Kan. 373, 381, 855 P.2d 929 (1993); see also Welsch v. Trivestco Energy Co., 43 Kan. App. 2d 16, 221 P.3d 609 (2009) (general discussion of all these general principles and their application in Kansas), rev. denied 291 Kan. 917 (2010).
To avoid expiration due to lack of production after the primary term of a lease, however, it is incumbent on the party making the claim to sustain its burden to show that either of these alternative doctrines is applicable to keep the lease from expiring. That is, in the absence of evidence to show that a lack of production is merely temporary or that shut-in royalty payments have been made to serve as constructive production, an extended period of nonproduction standing alone can indeed serve to support lease expiration. The burden to rebut the clear implication of expiration by lack of production must fall on the party who seeks to demonstrate an exception to the clear effect of the habendum clause in the lease under challenge. See Tucker, 253 Kan. at 380-82 (habendum clause is provision defining secondary term of lease after development takes place); Pray v. Premier Petroleum, Inc., 233 Kan. 351, 353-55, 662 P.2d 255 (1983) (detailing burdens on the lessee in establishing applicability of shut-in provisions); Eichman, 19 Kan. App. 2d at 714 (burden is on the lessee seeking to prove lease still in effect to establish any cessation of production is temporary and not permanent); see also Webb v. Hardage Corp., 471 So. 2d 889, 892 (La. App. 1985) (a lessee who claims to hold through the payment of shut-in royalties has the burden of showing that the well was capable of producing in paying quantities).
Here, the undisputed production histoiy presented at summary judgment demonstrated that at the time of Barker’s assignment of the Babbs lease to RAMA, there had been no production within the gas unit for 23 months and the operator/lessee of the prior lease (the Tyrell lease) had executed and there were recorded two releases of that interest. Granted, there was some dispute as to whether the second release was a “mistake,” but we are not inclined to hold that this alone created a genuine issue of material fact that precluded summary judgment as a matter of law for three reasons.
First, eveiy instrument in writing, certified and duly recorded in Kansas, imparts notice to all persons of its contents, and where its validity is called into question, it will not be held invalid absent satisfactory and convincing evidence by the challenging party. See K.S.A. 58-2222; Palmer v. The Land & Power Co., 172 Kan. 231, 239 P.2d 960 (1952).
Second, although not raised by Barker, Schremmer was es-topped from asserting rights to the acreage because of the two releases that he executed. See Adolph v. Stearns, 235 Kan. 622, 629, 684 P.2d 372 (1984) (“ ‘A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it has a duty to speak, induced it to believe certain facts existed. It must show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts.’ [Citation omitted.]”); accord Schraft v. Leis, 236 Kan. 28, 36, 686 P.2d 865 (1984). Because no lawful claim was ever brought against RAMA, no findings of fact and conclusions of law allowing appellate review of an estoppel claim are before this court. See Adolph, 235 Kan. at 630. But RAMA clearly overreacted to Schremmer’s adverse claim given that he was estopped from its assertion. Schremmer’s claims contraiy to his release were not only estopped, they likely created liability for slander of title. See Berryman v. Sinclair Prairie Oil Co., 164 F.2d 734 (10th Cir. 1947).
Third, the lack of production, together with (i) no factual assertions to support its being merely temporary, (ii) no allegations that the well was a shut-in well with royalty payments being made, and (iii) and at least one undisputed release of record by the prior operator/lessee, cause us to conclude that the prior leases had expired. Under these circumstances, a long-distance phone call with the individual executing the second release who indicated that the release was a “mistake” has little if any evidentiary value on the question of continuing lease validity because of the long-established principle in Kansas that the lack of a release is no evidence that an oil and gas lease is still in force. Cement Co. v. Brick & Tire Co., 100 Kan. 547, 549, 164 P.1087 (1917); see also Peating v. Baird, 168 Kan. 528, 536-38, 213 P.2d 1015 (1950) (finding that although no release appeared in the record, the failure of the lessee to file an affidavit showing the happening of any contingency that would extend the express term of the lease disclosed a situation where the lease had expired by its own terms, and therefore it was of no force or effect and constituted no encumbrance on the title).
Based upon RAMA’s failure to successfully controvert the production history on the gas unit and the resulting 23 months of nonproduction, its failure to factually support a temporary cessation of production, its failure to support constructive production by reason of shut-in royalty payments, and the fact of at least one undisputed release of record by the operator/lessee of the prior lease on this acreage, we hold that there was no lawful adverse claim constituting a breach of Barker’s covenant of warranty of title or triggering his duty to defend and he was entitled to judgment as a matter of law at summaiy judgment.
Did RAMA’s Claim that Barker Breached the Implied Covenant of Good Faith and Fair Dealing Bar Summary Judgment for Barker?
The only mention by RAMA at summary judgment of its claim of breach of the implied covenant of good faith and fair dealing was the following reference near the end of RAMA’s summary judgment brief:
“D. Defendant David A. Barker breached his express warranty of title made to the Plaintiff for which the Plaintiff is entitled to recover against the Defendant in the amount of $13,356.44.
“The warranty of title from Defendant David A. Barker was broad and explicit, compelling him to ‘forever defend the same against all persons whomsoever, lawfully claiming or to claim the same.’ As with all contracts, Barker owed a duty of good faith, fair dealing and cooperation to the plaintiff as he performed his contractual duties. [Citations omitted.]
“The Defendant had an obligation to deliver good and merchantable title free of adverse claims and had an ongoing obligation to inform the Plaintiff of any adverse claims, which he failed to do. If he had disclosed the true state of tire title, the Plaintiff would not have detrimentally relied on the Defendant’s misrepresentations.” (Emphasis added.)
Beyond this bare-bones articulation of a claim at summaiy judgment, RAMA did not argue that there existed any genuine issues of material fact that precluded summary judgment against it on this claim, and RAMA never sought summaiy judgment in its favor on this claim. Our examination of Judge Kitts’ memorandum decision on summaiy judgment reveals that she did not rely on this claim in denying Barker’s motion for summaiy judgment, and RAMA did not cross-appeal this decision. Moreover, on appeal, RAMA’s only reliance on this claim is a quote from Article 2 of the UCC and the singular statement in RAMA’s appellate brief that “the good faith principal [sic] alone, separate and apart from Defendant’s express covenants, would provide the legal basis for the Court to uphold the lower court’s decision.” This conclusoiy statement alone does not merit our consideration of the claim on appeal. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (a point raised incidentally in a brief and not argued there is deemed abandoned). At no time on appeal has RAMA argued that this breach should have precluded summary judgment for Barker even if the prior lease had expired. For all these reasons, we are not inclined to address whether RAMA’s claim of breach of the implied covenant of good faith and fair dealing could or should have defeated Barker’s summaiy judgment motion.
In summaiy and conclusion, we hold that Barker’s uncontroverted production history showing no production within the Fitzgerald Gas Unit and on the lease in question for at least 23 months, coupled with the failure of RAMA to provide factual support for any scenario that could have kept the lease from expiring by its own terms and the fact of at least one duly recorded release by the adverse claimant, demonstrated that there was no lawful claim asserted by Schremmer/Bear Petroleum, thus entitling Barker to summary judgment. We further hold that RAMA failed to adequately defend the summary judgment by its claim that Barker breached his implied duty of good faith and fair dealing and further failed to adequately raise this defense on appeal to warrant our discussion of its merits. For these reasons, we must reverse the decision of Judge Kitts at summary judgment, reverse Judge Bennington’s reconsideration of that motion, reverse the subsequent judgment at bench trial, and remand with directions to grant summary judgment for Barker.
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Per Curiam:
Roger Shaw appeals his conviction of involuntary manslaughter while driving under the influence of alcohol. For the first time on appeal, Shaw argues that we must reverse his conviction because the district court instructed the jury on multiple alternative means of committing the crime and the State failed to present sufficient evidence of each alternative means. In addition, Shaw contends that the district court violated his constitutional rights by sentencing him based in part on his criminal history without first requiring that the criminal history be alleged in the complaint and proven beyond a reasonable doubt to a jury. We agree with Shaw that involuntary manslaughter while driving under the influence of alcohol is an alternative means crime. We also agree with Shaw that the State failed to present substantial evidence of at least one of the alternative means of committing the crime. Accordingly, we reverse Shaw’s conviction and remand for a new trial.
The tragic events of this case unfolded on a Sunday afternoon, July 19, 2009. Adam and Aaron Kichler were brothers and spent a lot of time together, often riding their motorcycles. At approximately 2:45 p.m., Adam and Aaron left their parents’ home in Ottawa to ride their motorcycles to Wellsvifle and then on to Kansas City to see a movie. Adam later testified that they were not in a hurry and they did not exceed the speed limit on the county road, which was 55 miles per hour. The two young meii rode staggered; Aaron rode in front near the center line, and Adam rode approximately 12 to 15 feet behind him near the fog line by the shoulder of the road. The brothers drove eastbound on Shawnee Road toward Wellsvifle.
Meanwhile, Roger Shaw and Dennis Ameigh were traveling back to Shaw’s house from a trip to buy car parts; Shaw was driving his truck westbound on Shawnee Road. Adam testified that when he and Aaron were a quarter mile from the intersection of Shawnee Road and Texas Road, he saw a red truck coming in the opposite lane; the truck had slowed down to a “slow roll.” Adam testified that as they came upon the truck, he “saw the front end of the truck lift up,” meaning that the driver was sharply accelerating and beginning to turn left in front of the approaching motorcycles. Adam testified that he saw the truck’s wheels turn and he heard Aaron yell. Aaron’s motorcycle hit the truck. Adam locked his brakes and turned to the left, avoiding the truck by an inch or two.
Shanta Kemp, who lived nearby, was driving home, saw the aftermath of the collision, stopped, and called 911. During her 911 call, Kemp informed the dispatcher that she could smell alcohol on Shaw’s breath. Emergency services personnel were dispatched to the scene and pronounced Aaron dead at the scene.
Joanna Buchom, an emergency medical technician who treated Shaw at the scene, later testified that Shaw told her that he had consumed “a couple of beers” prior to the accident and repeatedly told her that he had not seen the motorcycles. Kyle Lasswell, who was employed by the Wellsville Police Department and had been dispatched to the collision, later testified that he and Adam saw an empty beer box on the ground by Shaw’s truck. Franklin County Sheriff s Deputy Carl Bentley testified that when he talked with Shaw at the scene, he smelled a faint odor of alcohol coming from Shaw and that Shaw admitted to drinking three beers that day. According to Bentley, Shaw told him that the sun was in his eyes as he made the left turn from Shawnee Road onto Texas Road and he could not see the motorcycles. At the request of law enforcement, Buchom obtained a blood sample from Shaw at 3:42 p.m. The blood sample tested at a .11 blood alcohol level, above the legal limit of .08.
On November 19,2009, the State charged Shaw with involuntary manslaughter while driving under the influence of alcohol or dmgs, in violation of K.S.A. 21-3442. The jury trial occurred October 4-8, 2010. The main point of contention at trial was the identification of the direct cause of the collision and, therefore, Aaron’s death. The State argued that Shaw’s intoxication was the cause of the collision, while Shaw contended that Aaron had been speeding. The State presented testimony from Emily Wood, the 911 dispatcher who received Kemp’s call, which included the information that Kemp could smell alcohol on Shaw’s breath. Kemp also testified for the State. In addition to stating that she smelled alcohol on Shaw’s breath, Kemp testified that when she had seen the motorcycles drive by a few minutes prior to the collision, she did not believe they were speeding. Buchom also testified about Shaw’s admission that he had consumed “a couple of beers” prior to the accident. Adam Kichler testified as to the events of the day and specifically stated that neither he nor Aaron was speeding.
The State also offered testimony from law enforcement officials including Lasswell, Bentley, and Franklin County Sheriff s Deputy Brian Ferguson, who photographed the scene and took measurements. Franklin County Sheriff Jeffrey Curry, who at the time of the collision was a patrol sergeant, also testified for the State. Curry had conducted a speed analysis on Adam’s motorcycle primarily by considering the length and direction of the skid marks. Curry determined that Adam was going 41-47 miles per hour at the point he locked up his rear brake. Because Adam and Aaron were traveling together, Curry stated it was reasonable to assume they were going the same speed and he had no reason to believe Aaron was driving faster than the posted speed limit of 55 miles per hour. In addition, each law enforcement officer testified that, at mid-afternoon on the day in question, the sun did not detrimentally affect his vision while driving to the scene of the collision.
The State also called Dr. Christopher Long, who had analyzed bodily fluids taken from Aaron and testified that the tests showed that sometime in the 20 hours prior to the accident, Aaron had taken hydrocodone and Tylenol, but that the levels present would not have caused impairment. Dr. Joel Kavan, a family physician, testified that he had treated Aaron on July 8, 2009, and prescribed hydrocodone and an anti-nausea medication for Aaron’s back pain.
Next, the State presented the testimony of Andy Buck, a senior field claims adjuster for Farm Bureau Life Insurance Services assigned to investigate the collision. Buck interviewed Shaw as part of his investigation. Buck testified that Shaw told him that he had consumed two and one-half beers over a 3-hour period on July 19, 2009. Shaw told Buck that prior to the collision, he had seen the motorcycles traveling toward him but after he began his turn, he looked up and the motorcycles were “right there.” Shaw told Buck that he believed the motorcyclists were racing and that Aaron could have avoided hitting his truck.
Dr. Erik Mitchell, the forensic pathologist who performed the autopsy on Aaron, testified about Aaron’s extensive injuries, both internal and external, and that the injuries were consistent with direct impact with a vehicle. Jennifer Agee, a forensic toxicologist with the Kansas Bureau of Investigation, testified that she had analyzed Shaw’s blood sample and found .11 grams of ethyl alcohol per 100 milliliters of blood, which is above the legal limit in Kansas of .08.
Finally, the State presented the testimony of Robert McKinzie, an accident reconstruction specialist, who had performed a reconstruction of the collision. McKinzie based his analysis on an examination of the sheriffs department file, photographs of the crash site, a visit to the crash site, information from witnesses, and a transcript. In McKinzie’s opinion, the sun was not a factor in the collision, nor was the weather or the layout of the road. McKinzie also analyzed the speed of Adam’s motorcycle and determined that Adam — and by implication Aaron — had been traveling 52 or 53 miles per hour at the time of the accident.
Shaw presented the testimony of four witnesses, but he made no attempt to dispute the State’s evidence that he had been drinking prior to the accident and that his blood alcohol content was above the legal limit. Shaw recalled Ferguson to answer a question about the geography around the intersection, and he also called the tow truck operator who removed the vehicles from the scene.
Next, Shaw called Ameigh, his passenger at the time of the collision. Ameigh testified that, on the day in question, he and Shaw were traveling back from Gardner, where they had gone to buy parts for the car they were repairing. Ameigh further testified that Shaw was not speeding as they approached the turn from Shawnee Road onto Texas Road and that he slowed to make the turn, made a steady turn, and did not accelerate sharply. Ameigh stated that as they were preparing to turn, he saw the lights of two motorcycles at the top of a nearby hill; he thought they were at least a quarter of a mile away. Ameigh did not think the motorcycles were coming very quickly or that they were racing; he glanced away for a few seconds and, when he looked back up, he saw a motorcycle sliding toward the truck.
Shaw’s final witness was John Glennon, a forensic automotive technologist and full-time accident reconstructionist. Glennon read the police reports, reviewed photographs of the scene, and read Curry’s reconstruction report. He also visited the crash site, but not until March 2010. Glennon determined that Shaw’s truck moved south and east after the collision and was pushed by the motorcycle. He concluded that the minimum impact speed of Aaron’s motorcycle was 84 miles per hour. In his report, Glennon approximated Aaron’s speed at 92 miles per hour. After Glennon’s testimony, Shaw rested his case.
In closing arguments, both parties focused on the estimated speed at which Aaron was driving immediately prior to the collision. The State emphasized its contention that Aaron and Adam were not speeding and that Shaw was intoxicated to the point of being incapable of safely driving. Shaw, on tire other hand, argued that Aaron and Adam were speeding and challenged the State’s witnesses’ calculations that placed the speed of the motorcycles below the speed limit. Shaw’s counsel put it bluntly: “The cause of this collision was high speed.”
The jury deliberated approximately 2 hours, and there were no questions from the jury or requests for the read-back of any testimony. The jury found Shaw guilty of involuntary manslaughter while driving under the influence of alcohol to a degree that rendered him incapable of safely driving. At sentencing, Shaw did not object to his criminal history, which included three prior convictions of driving under the influence of alcohol (DUI). The district court sentenced Shaw to 120 months’ imprisonment. Shaw timely appealed his conviction and sentence.
For the first time on appeal, Shaw argues that we must reverse his conviction of involuntary manslaughter while driving under the influence of alcohol because the district court instructed the jury on alternative means of committing the crime and the State failed to present sufficient evidence of each alternative means. Shaw also contends that the district court violated his constitutional rights by sentencing him based in part on his criminal history without first requiring that the criminal history be alleged in the complaint and proven beyond a reasonable doubt to a juiy. The State argues that the jury was presented with sufficient evidence to convict Shaw of involuntary manslaughter while driving under the influence of alcohol. The State further argues that the district court correctly sentenced Shaw.
Both parties agree that when the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). The State also argues that because Shaw did not make any substantive objection to the jury instruction setting forth the elements of the crime including the alternative means of committing the crime, we should review whether die jury instruction was clearly erroneous. See K.S.A. 22-3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have returned a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).
Shaw’s primary contention is that this is an alternative means case and the State failed to present sufficient evidence of each alternative means of committing involuntary manslaughter while driving under the influence of alcohol. Although Shaw did not raise this argument below, this court has previously held that an alternative means error can be raised for the first time on appeal. See State v. Waldrup, 46 Kan. App. 2d 656, 663, 263 P.3d 867 (2011) (alternative means challenge can be raised for the first time on appeal because it implicates insufficiency of evidence to support the conviction), petition for rev. filed November 16, 2011; State v. Rivera, 42 Kan. App. 2d 914, 918, 218 P.3d 457 (2009) (stating that a criminal defendant need not challenge the sufficiency of the evidence before the district court to preserve the issue for appeal), rev. denied 290 Kan. 1102 (2010).
Our Supreme Court has stated the following rule of law governing alternative means cases in Kansas:
“ ‘ “In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]” ’ ” State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159 (2010) (quoting State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 [1994]).
Shaw was convicted of violating K.S.A. 21-3442, which provides: “Involuntary manslaughter while driving under the influence of alcohol or drugs is the unintentional killing of a human being committed in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567 and amendments thereto.” K.S.A. 8-1567(a)(3) prohibits a person from operating or attempting to operate a vehicle while under the influence of alcohol to a degree that renders the person incapable of safely driving the vehicle. The statute also prohibits a person from operating or attempting to operate a vehicle while the alcohol concentration in the person’s blood or breath is .08 or more. See K.S.A. 8-1567(a)(l) and (2). Shaw was charged with a complaint that mirrored the statutory language.
At trial, the district court instructed the jury as follows:
“The defendant is charged with the crime of involuntary manslaughter while driving under the influence of alcohol. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant unintentionally killed Aaron Kichler;
“2. That it was done in the commission of, while attempting to commit, or while in flight from committing or attempting to commit the act of operating any vehicle in this state
(a) While under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle; and/or
(b) While having an alcohol concentration of .08 or more as measured within two hours of the time of operating or attempting to operate the vehicle; and
“3. That this act occurred on or about the 19th day of July, 2009, in Franklin County, Kansas.
“The phrase ‘alcohol concentration’ means the number of grams of alcohol per 100 milliliters of blood.
“The fault or lack of fault of Aaron Kichler is a circumstance to be considered along with all die other evidence to determine whether the defendant’s conduct was or was not the direct cause of Aaron Kichler’s death.”
The only objection Shaw raised to the jury instruction was that the last sentence should be given in the form of a separate instruction. Shaw raised no objection to the second claim or element of the crime as instructed by the juiy, and, in fact, there was no discussion between the district judge and counsel about the language of the second claim or element of the crime during the jury instruction conference.
On appeal, Shaw argues that this instruction contained alternative means of committing the crime, allowing the jury to find Shaw guilty of involuntary manslaughter if he unintentionally killed Aaron committed in the (1) commission of, (2) attempt to commit, or (3) flight from a DUI. Shaw does not argue that the State presented insufficient evidence to support his conviction of involuntary manslaughter committed in the commission of DUI. But Shaw argues that the State presented insufficient evidence to support his conviction of involuntary manslaughter committed in an attempt to commit DUI. Shaw also argues that the State presented insufficient evidence to support his conviction of involuntary manslaughter committed in flight from a DUI.
We must first determine whether involuntary manslaughter while driving under the influence of alcohol in violation of K.S.A. 21-3442 is an alternative means crime. We do so by examining the statutory definition of the crime. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
The legislature has not statutorily defined an alternative means crime, nor specified which crimes are alternative means crimes. This is left to judicial determination. This court has adopted the following definition:
“Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense. When criminal statutes create two or more distinct ways of committing an offense, those ways reflect alternative means. Other criminal statutes establish only one way to commit an offense, although they may use synonymous or redundant terms to define the prohibited conduct. Such statutes do not create alternative means.” State v. Schreiner, 46 Kan. App. 2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011), petition for rev. filed December 5, 2011.
Under the plain language of K.S.A. 21-3442, there are three alternative means to commit the crime of involuntary manslaughter while driving under the influence of alcohol: the unintentional killing of a human being committed in the (1) commission of, (2) attempt to commit, or (3) flight from an act described in K.S.A. 8-1567 and amendments thereto. The State does not deny that this is an alternative means case.
Next, we must consider whether the State presented substantial evidence to prove each alternative means. See Wright, 290 Kan. at 202. As previously stated, Shaw does not argue that the State presented insufficient evidence of involuntary manslaughter committed in the commission of DUI. But Shaw argues that the State presented insufficient evidence to support his conviction of involuntary manslaughter committed in an attempt to commit DUI. Shaw notes that in State v. Stevens, 285 Kan. 307, 314-19, 172 P.3d 570 (2007), the Kansas Supreme Court held that under K.S.A. 2006 Supp. 8-1567, operating and attempting to operate a vehicle present alternative means to commit the crime of DUI. The Stevens court went on to determine that there was sufficient evidence to support each alternative means under the facts of the case. 285 Kan. at 316-19.
The State argues that, because it presented sufficient evidence to find Shaw guilty of unintentionally killing Aaron while committing the act of DUI, it necessarily presented sufficient evidence to find him guilty of unintentionally killing Aaron while attempting to commit the act of DUI. The State relies on State v. Perkins, 46 Kan. App. 2d 121, 257 P.3d 1283 (2011), rev. granted December 19, 2011, argued April 11, 2012. In Perkins, the defendant was convicted under K.S.A. 2008 Supp. 8-1567 for operating or attempting to operate a vehicle while under the influence of alcohol. On appeal, the defendant argued that there was insufficient evi dence to support each alternative means of committing the crime. The defendant noted that K.S.A. 21-3301 defines attempt as “ ‘any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime/ ” 46 Kan. App. 2d at 124. The defendant argued that there was no evidence in his case that he attempted but failed to commit the crime of DUI.
Acknowledging the decision in Stevens, this court found that operating or attempting to operate a vehicle while under the influence of alcohol created alternative means of committing the crime. 46 Kan. App. 2d at 122-23. But this court rejected the defendant’s application of K.S.A. 21-3301 to define attempt as that term is used under K.S.A. 8-1567. This court noted that under the DUI statute, an attempt is “treated as the legal equivalent of the completed offense and carries the same punishment,” while the criminal attempt statute codifies a type of crime different and separate from a completed offense. 46 Kan. App. 2d at 124-25. This court further noted that while criminal attempt requires that the perpetrator intend to commit the crime, the DUI statute requires no such intent. This court found that the DUI statute’s specific mention of attempt controls over the more general application of the criminal attempt statute. 46 Kan. App. 2d at 126-27. This court concluded that “[f]or purposes of K.S.A. 2008 Supp. 8-1567, then, a driver who actually operates a vehicle necessarily also attempts (successfully) to do so,” although “[t]he converse would not necessarily be true.” 46 Kan. App. 2d at 127.
We agree with the rationale expressed in Perkins. Thus, it is unnecessaiy for this court to search for evidence in the record that Shaw attempted to commit a DUI but failed to do so. Following the Perkins rationale, by presenting substantial evidence that Shaw committed involuntary manslaughter during the commission of DUI, we conclude the State necessarily presented substantial evidence that Shaw committed involuntary manslaughter during the attempted commission of DUI. However, we acknowledge that Perkins is under review by our Supreme Court.
Next, Shaw argues that the State presented insufficient evidence to support his conviction of involuntary manslaughter committed in flight from a DUI. As Shaw notes, our Supreme Court has stated that “[fjlight has been defined simply as ‘[t]he act or an instance of fleeing, esp. to evade arrest or prosecution.’ [Citation omitted.]” State v. Rogers, 282 Kan. 218, 230, 144 P.3d 625 (2006). Shaw argues there is no evidence to support the inference that he was attempting to flee from the commission of DUI or to evade arrest or prosecution for DUI.
The State first replies that the language “flight from” committing a DUI under K.S.A. 21-3442 is superfluous and does not create an alternative means of committing involuntary manslaughter. Our Supreme Court, however, has held that the rules of statutory construction attempt to avoid rendering statutory language meaningless or superfluous. See State v. Sedillos, 279 Kan. 777, 784, 112 P.3d 854 (2005) (stating that rendering a portion of the statute “superfluous or meaningless [is] a result sought to be avoided by the rules of statutory construction”); State v. Burhans, 277 Kan. 858, 871, 89 P.3d 629 (2004) (“ If reasonably possible, this court is to avoid statutory constructions that make part of a statute surplusage.’ [Citation omitted.]”).
Alternatively, the State contends that it presented sufficient evidence of flight. Although the State made no argument during the trial that the evidence established flight from a DUI, the State asserts on appeal that Shaw was “trying to get home without being caught driving under the influence” and was therefore fleeing from the commission of DUI. The citation the State gives to support this statement is merely to Ameigh’s testimony that the collision occurred while he and Shaw were returning to Shaw’s house from Gardner. Although the record establishes that the accident occurred near Shaw’s home, there is nothing in the record that supports the State’s contention' that Shaw was “trying to get home without being caught driving under the influence.”
Moreover, our Supreme Court has treated “flight” as coming after a completed crime, not an ongoing crime. See State v. Kunellis, 276 Kan. 461, 467-74, 78 P.3d 776 (2003) (examining felony-murder statute, which criminalized the killing of a human being in the commission of, attempt to commit, or flight from an inherently dangerous felony and referring to flight from that “completed crime”). Under the ordinary meaning of tire language of K.S.A. 21-3442, there must be evidence of a separate flight from the crime of DUI to support a conviction under this alternative means. Here, there was absolutely no evidence presented at trial that Shaw committed involuntary manslaughter in flight from a DUI. Therefore, because there was insufficient evidence to support one of the alternative means, the conviction was in error.
The Kansas Supreme Court has stated: “ ‘[A] reversal mandated by Timley [based on an alternative means error] is a reversal for insufficient evidence. An insufficiency error cannot be harmless because it means the State failed to meet its burden of proving the defendant guilty beyond a reasonable doubt. This is a most basic guarantee of due process in criminal cases.’ ” Wright, 290 Kan. at 205 (quoting Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 299 (2005). Thus, in Wright the Kansas Supreme Court holds that an alternative means error is not subject to harmless error analysis. 290 Kan. at 205. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Jones, 44 Kan. App. 2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Thus, we will not engage in any analysis of whether the alternative means error committed in this case can be considered harmless.
Shaw’s brief concludes by requesting this court to reverse his conviction. No issue is raised by either party as to whether Shaw can be retried for involuntary manslaughter while driving under the influence of alcohol. Arguably, the legal issue of whether Shaw can be retried for the offense is not ripe for determination. But in the interest of judicial economy, it makes sense to address the issue now in order to save the parties the time and expense of having a second trial that may be found to be legally barred. See State v. Hernandez, 294 Kan. 200, 208-11, 273 P.3d 774 (2012) (court addressed, but did not decide, whether defendant could be retried for off-grid version of aggravated indecent liberties after his conviction for on-grid version was reversed and remanded for retrial).
The remedy for an alternative means error remains unsettled in Kansas. Because an alternative means error implicates insufficiency of the evidence to support the conviction, arguably an alternative means error results in reversal of the conviction and retrial is barred by double jeopardy. See Burks v. United States, 437 U.S. 1, 11, 16-18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (reversal for insufficient evidence is akin to judgment of acquittal warranting double jeopardy protection). This court has taken this position without specifically addressing the issue. See Perkins, 46 Kan. App. 2d at 128-32 (reversing conviction of driving while suspended due to alternative means error and entering a judgment of acquittal); State v. Owen, No. 102,814, 2011 WL 2039738, at *1-5 (Kan. App. 2011) (unpublished opinion) (reversing convictions of forgery due to alternative means error), rev. granted February 17, 2012; see also dicta in State v. Boyd, 46 Kan. App. 2d 945, 948-49, 268 P.3d 1210 (2011), (stating tire presumed remedy for insufficient evidence of an alternative means crime is reversal and entry of a judgment of acquittal), petition for rev. filed January 23, 2012; cross-petition for rev. filed February 6, 2012.
In State v. Crane, 260 Kan. 208, 918 P.2d 1256 (1996), the defendant was convicted of multiple crimes including lewd and lascivious behavior and kidnapping. On appeal, our Supreme Court affirmed the defendant’s conviction of lewd and lascivious behavior. As to kidnapping, our Supreme Court found that, as charged, the kidnapping statute presented the alternative means of kidnapping by “taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person: . . . (b) To facilitate flight or the commission of any crime; or (c) To inflict bodily injury or to terrorize the victim or another.” 260 Kan. at 230. After reciting the standard of review for an alternative means case and reviewing the facts in the record on appeal, the Supreme Court found that there was insufficient evidence to support a finding that the defendant took or confined his victim to facilitate flight or the commission of another crime. 260 Kan. at 230-34. The court simply reversed the kidnapping conviction and did not state whether retrial of any sort was appropriate. 260 Kan. at 234.
Although there is no Kansas Supreme Court case directly on point, the Supreme Court of Washington has addressed the remedy to an alternative means error. It is important to note that current alternative means analysis in Kansas is similar to that of Washington. See Timley, 255 Kan. at 289 (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988], to distinguish between alternative means and multiple acts challenges and to articulate the test for alternative means cases). In State v. Ramos, 163 Wash. 2d 654, 660-61, 184 P.3d 1256 (2008), the Washington Supreme Court explicitly discussed double jeopardy principles in an alternative means case:
“The alternative means principle dictates that when a jury renders a guilty verdict as to a single crime, but one of the alternative means for committing that crime is later held to be invalid on appeal and the record does not establish that tire jury was unanimous as to the valid alternative in rendering its verdict, double jeopardy does not bar retrial on the remaining, valid alternative mean. [Citations omitted.] This is the case even when one alternative mean has been reversed on appeal due to a finding of insufficient evidence, a finding that has tire same double jeopardy implications as an outright acquittal in other circumstances. [Citations omitted.]”
See also State v. Lucas, No. 27042-1-II, 2002 WL 399485, at *1-3 (Wash. App. 2002) (unpublished opinion) (first-degree robbery conviction reversed and remanded for new trial after appellate court found insufficient evidence to support one of the alternative means of committing the crime).
Moreover, in her above-referenced law journal article, Justice Beier addressed retrial following an alternative means error as follows:
“In a Timley alternative means case, any reversal would be grounded on a failure of proof, a violation of the super-sufficiency condition. Thus retrial on that theory could not be permitted. It, like retrial on any theory held unsupported by sufficient evidence on appeal, would result in double jeopardy. The defendant can only be retried on the theory for which evidence was sufficient the first time, without tire pollution of evidence or argument supporting the alternative theory.” 44 Wash-bum L.J. at 294.
In Shaw’s case, we are not reversing his conviction because there was insufficient evidence that he committed the crime of involuntary manslaughter while driving under the influence of alcohol; clearly there was sufficient evidence to support Shaw’s conviction based on at least one means of committing the crime. Rather, we are reversing Shaw’s conviction only because, at least theoretically, the jury could have convicted Shaw based on an alternative means not supported by the evidence, i.e., involuntary manslaughter committed in flight from a DUI. If Shaw’s conviction had not been supported by sufficient evidence on any of the alternative means of committing the crime, then this would be the functional equivalent of an acquittal and a retrial would be barred by double jeopardy. But we cannot ignore the fact that there was sufficient evidence to prove at least one means of committing the crime. In this instance, it stands to reason that the proper remedy is to reverse Shaw’s conviction and remand for a new trial only on the alternative means supported by sufficient evidence in the first trial. This remedy does not violate Shaw’s double jeopardy rights.
In summary, the State presented sufficient evidence to support Shaw’s conviction of involuntary manslaughter committed in the commission of DUI. Our conclusion that die State presented sufficient evidence to support Shaw’s conviction of involuntary manslaughter committed in an attempt to commit DUI is based on Perkins, 46 Kan. App. 2d at 127. But because Perkins is stifl'under review by the Kansas Supreme Court, the safest course of action for the State is to retry Shaw on only one means of committing the crime: the unintentional killing of a human being committed in the commission of DUI. Accordingly, Shaw’s conviction of involuntary manslaughter is reversed and remanded for a new trial consistent with this opinion. Because we are reversing Shaw’s conviction, we need not address his sentencing issue.
Reversed and remanded with directions.
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Bruns, J.:
M.S., who is married to A.S., filed a petition to adopt her children, C.A.T., B.T.M., and E.A.K.M. The adoption of C.A.T., who has a different father than his siblings, was not challenged at the district court level and is not at issue in this case. But J.R, the natural father of B.T.M. and E.A.K.M., asserted his parental rights and refused to consent to their adoption. After holding an evidentiary hearing, the district court terminated J.R.’s parental rights under K.S.A. 2010 Supp. 59-2136(h)(l)(F) — which permits termination of a father’s parental rights if a child is conceived as a result of rape — and granted the adoption. Under the unique circumstances presented, we find that K.S.A. 2010 Supp. 59-2136(h)(1)(F) is applicable in this case. Furthermore, because there is substantial evidence in the record to establish that B.T.M. was conceived as a result of rape and because there is substantial evidence in the record that J.R. failed to perform his parental duties as to E.A.K.M. for 2 consecutive years prior to the filing of the petition for adoption under K.S.A. 2010 Supp. 59-2136(h)(l)(G), we affirm the decision of the district court.
Facts
Although it is undisputed that A.S. gave birth to B.T.M on August 30, 2002, and that J.R. is the child’s natural father, the events that occurred on the night of B.T.M.’s conception are disputed. A.L. testified at the hearing held by the district court in this case that she, J.R., and A.S went to a New Year’s Eve party on December 31, 2001. According to A.L., the group headed to a friend’s house for breakfast after the party, where J.R. raped A.S.
A.L. testified that A.S. was “pretty out of it” from drinking too much. When A.S. started to dry heave, A.L. helped her to the bathroom. J.R. came in to help, and A.L. left the bathroom for a moment to get a rag. When A.L. returned to the bathroom, she found that the door had been locked from the inside.
A.L. testified that she banged on the bathroom door, but J.R. refused to let her in. Through the bathroom door, A.L. heard A.S. saying “no, no, no” and “stop.” About an hour later, J.R. and A.S. came out of the bathroom. Evidently, J.R. was asked to leave the house. After protesting, he left the residence and sat in A.S.’s car to wait for her. After A.S. had sobered up, she left with J.R.
A.S. testified that she never had sex with J.R. prior to that night. Although she did not remember exactly what happened on the evening of B.T.M.’s conception, A.S. recalled that eveiyone at the house was mad at J.R. and that she had wanted to kill him. A few days later, A.L. told A.S. what she had heard through the bathroom door. But when A.S. confronted J.R., he denied that he had forced himself on her.
Subsequently, A.S. discovered she was pregnant. For a short period of time during the pregnancy, A.S. and J.R. lived together. By the time B.T.M. was bom, however, J.R. had moved out. According to A.S., she did not initially tell J.R. about the birth because she was not sure if he was B.T.M’s father.
A few months later, Kansas Social and Rehabilitation Services (SRS) instituted a paternity action against J.R., and DNA testing was ordered by the district court. The results of the DNA test conclusively showed that J.R. was B.T.M.’s father. Thereafter, J.R. began receiving court-ordered parenting time with B.T.M.
A.S.’s current husband testified that he later confronted J.R. and that J.R. admitted to raping A.S. in the bathroom on the night of B.T.M.’s conception. J.R., however, denied making such an admission. In fact, J.R. testified to a quite different version of the events that led to B.T.M.’s conception.
According to J.R., he and A.S. had consensual sex in a shower at A.L.’s house. After A.S. learned that she was pregnant, she and J.R. decided to live together because they thought she was carrying his child. After finding out that A.S. had been involved with another man, J.R. began to doubt the child’s paternity and he moved out. J.R. claims he did not know he was the father of B.T.M. until November 2002, about 3 months after the child was born.
E.A.K.M. was born on August 8, 2004. According to A.S., E.A.K.M. was also conceived as a result of rape. A.S. testified that on the night of E.A.K.M.’s conception, she brought B.T.M. with her to a card party held at the house of J.R.’s stepmother. Evidently, A.S. was asked to stay the night so that J.R. could spend more time with B.T.M.
Once again, A.S. was “out of it” from drinking too much liquor. Although she did not remember doing so, A.S. eventually went to bed in J.R.’s sister’s bedroom. A.S. testified she recalls waking up and being confused because J.R.’s sister was not with her in the bedroom and her pants were on the floor. When she went to the bathroom, she “just felt something” but did not realize that she had been raped.
When A.S. later found out that she was pregnant, she initially thought the father was another man she had been dating. But when her doctor told A.S. the conception date, she realized that J.R. had raped her again. Subsequently, DNA testing confirmed that J.R. was also the father of E.A.K.M.
On the other hand, J.R. testified that he and A.S. got back together after B.T.M. was bom to try to work things out for their son. During this period, J.R. was living at his stepmother’s house and A.S. would bring B.T.M. for visits. According to J.R., he, A.S., and B.T.M. slept in his sister’s bedroom on several occasions. And J.R. claims that on one of these nights, E.A.K.M. was conceived as a result of consensual sex.
On January 3, 2006, A.S. married M.S. More than 5 years later, on March 17, 2011, M.S. filed a petition to adopt C.A.T., B.T.M., and E.A.K.M. In response, J.R. asserted his parental rights and withheld his consent to the adoption. At the hearing held by the district court in this case, M.S. conceded that J.R. had made substantial child support payments on behalf of B.T.M. But the only child support payment made by J.R. on behalf of E.A.K.M. was $126 withheld from an income tax refund.
J.R. acknowledged that he had not seen E.A.K.M. since February 2007 and had not seen B.T.M. since August 2007. But he claimed to have called A.S.’s grandmother on numerous occasions in an attempt to see his children. According to J.R., he ultimately stopped calling because his requests were ignored and because he believed A.S.’s family would “try to get [him] for harassment.” J.R. also testified that he had contacted an attorney to assist him in obtaining parenting time, but he could not remember the attorney’s name.
In a journal entry entered on June 7, 2011, the district court terminated J.R.’s parental rights and granted M.S.’s petition for adoption of B.T.M. and E.A.K.M. Specifically, the district court found by clear and convincing evidence that J.R.’s consent to the adoption was not required under K.S.A. 2010 Supp. 59-2136(h)(1)(F) because B.T.M. and E.A.K.M. were conceived as a result of rape. Additionally as to E.A.K.M., the district court concluded that J.R. had failed to assume the duties of a parent because he made only one incidental child support payment on E.A.K.M.’s behalf and had no contact with her since February 2007.
Analysis
On appeal, J.R. raises three issues: (1) whether it was proper for the district court to apply K.S.A. 2010 Supp. 59-2136(h)(l) in this case; (2) whether there was sufficient evidence presented at the final hearing to support the district court’s decision; and (3) whether the district court’s decision was in the best interests of the children.
Application ofKS.A. 2010 Supp. 59-2136(h)(1)(F)
J.R. contends that the district court erred when it applied K.S.A. 2010 Supp. 59-2136(h)(l)(F) in this case rather than K.S.A. 2010 Supp. 59-2136(d) to terminate his parental rights without his consent. In response, M.S. contends that K.S.A. 2010 Supp. 59-2136(d) does not apply to this case because J.R. was presumed to be the father of B.T.M. and E.A.K.M. under K.S.A. 38-1114(a)(5). Based on the plain and unambiguous language of K.S.A. 2010 Supp. 59-2136(d), we agree with M.S.
We recognize that the Kansas Supreme Court recently found as follows in the case of In re Adoption of J.M.D., 293 Kan. 153, 162, 260 P.3d 1196 (2011):
“The clearly stated intent of [K.S.A. Supp. 2010 Supp. 59-2136(d)] was to treat the parental rights termination of natural or presumed fathers differently in stepparent adoptions than in other types of adoptions. That stated intent contradicts an implication that the legislature intended to incorporate the parental termination provisions of subsection (h) into tire stepparent adoption provisions of subsection (d).”
As our Supreme Court’s decision in J.M.D. clearly concludes, the legislature did not intend to graft the provisions of K.S.A. 2010 Supp. 59-2136(h) onto K.S.A. 2010 Supp. 59-2136(d). As such, if K.S.A. 2010 Supp. 59-2136(d) were applicable to the present case, it would be inappropriate to look to the provisions of K.S.A. 2010 Supp. 59-2136(h). But J.M.D. did not address the specific issue presented in this case. See Riggs v. Snell, 186 Kan. 725, 727, 352 P.2d 1056 (1960)(“[A] decision of this or any other court is authority only for the exact question presented for judicial determination.”).
In J.M.D., the father was presumed under K.S.A. 38-1114(a)(1) — which establishes a presumption when a child is bom during a marriage or within 300 days after the marriage is terminated — a presumption clearly covered by K.S.A. 2010 Supp. 59-2136(d). See 293 Kan. at 159, 162. In the present case, however, J.R. was presumed to be the father of B.T.M. and E.A.K.M. under K.S.A. 38-1114(a)(5) — which establishes a presumption of paternity based on genetic testing — a presumption that is not covered by K.S.A. 2010 Supp. 59-2136(d) or addressed in J.M.D.
K.S.A. 2010 Supp. 59-2136(d) states, in relevant part:
“(d) In a stepparent adoption, if a mother consents to the adoption of a child who has a presumed father under subsection (a)(1), (2) or (3) ofKS.A. 38-1114 and amendments thereto, or who has a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction, the consent of such father must be given to the adoption unless such father has failed or refused to assume the duties of a parent for two consecutive years next preceding die filing of the petition for adoption or is incapable of giving such consent.” (Emphasis added.)
The goal of statutory interpretation is to ascertain the intent of the legislature. See In re Adoption of S.J.R., 37 Kan. App. 2d 28, 33, 149 P.3d 12 (2006). Words must be given their plain meaning, and language found in the statute cannot be excluded. 37 Kan. App. 2d at 33. Moreover, the legislature’s express inclusion of one thing generally means it intended to exclude others. See Degollado v. Gallegos, 260 Kan. 169, 172, 917 P.2d 823 (1996). Accordingly, the statutory language, “who has a presumed father under subsection (a)(1), (2) or (3) of K.S.A. 38-1114,” cannot be ignored.
The legislature expressly included paternity presumptions (1), (2), and (3) of K.S.A. 38-1114(a) in K.S.A. 2010 Supp. 59-2136(d). As such, we must conclude that the legislature intended to exclude paternity presumptions (4), (5), and (6) of K.S.A. 38-1114(a) from K.S.A. 2010 Supp. 59-2136(d). Thus, based on the plain and unambiguous language of the statute, we conclude that K.S.A. 2010 Supp. 2010 Supp. 59-2136(d) is not applicable to J.R.’s situation.
It is important to note that each of the presumptions of paternity addressed in K.S.A. 2010 Supp. 59-2136(d) involve situations where the natural mother and father of a child were married or had attempted to be married. Conversely, the presumptions of paternity found in K.S.A. 38-1114(a)(4), (5), and (6) have nothing to do with marriage. Although it is not necessary to look to the legislative history of K.S.A. 2010 Supp. 59-2136(d) because legislative intent can be determined from the plain and unambiguous statutoiy language, we note that the legislative history confirms that the legislature intended that the statute be applicable to stepparent adoptions involving only certain types of natural fathers.
Specifically, the Advisory Committee’s comments that accompanied the enactment of K.S.A. 59-2136(d) stated:
“ ‘Subsection (d) limits the grounds for termination of certain natural fathers’ parental rights in connection with stepparent adoptions. Generally, if the child was the product of a marriage or attempted marriage, tire consent of the father must be obtained unless there was a failure to assume parental duties for two years.’” (Emphasis added.) J.M.D., 293 Kan. at 162 (quoting Minutes of the House Judiciary Committee, March 28, 1990, Attachment 3).
Hence, it is apparent that the legislature only had “certain natural fathers” in mind — those presumed under K.S.A. 38-1114(a)(1), (2), and (3)- — -when it enacted K.S.A. 59-2136(d). Had the legislature intended for K.S.A. 2010 Supp. 59-2136(d) to govern all stepparent adoptions, it would not have needed to specify the three presumptions set forth in the statute. Thus, we find that the legislative history of K.S.A. 2010 Supp. 59-2136(d) verifies the legislative intent gleaned from the plain and unambiguous language used in the statute.
To support his argument that subsection '(d) applies to stepparent adoptions even where paternity is presumed under K.S.A. 38-1114(a)(5), J.R. cites a case where this court applied subsection (d) to a stepparent adoption in which the natural father had been presumed through genetic testing under K.S.A. 38-1114(a)(5) and had never been married to the mother or attempted to marry the mother. Seé In re Adoption of G.L.V., 38 Kan. App. 2d 144, 145, 163 P.3d 334 (2007), aff'd 286 Kan. 1034, 190 P.3d 245 (2008). As M.S. notes in his brief, the issue presented here — whether K.S.A. 2010 Supp. 59-2136(h) is applicable to a stepparent adoption not covered by K.S.A. 2010 Supp. 59-2136(d) — was not addressed in G.L.V. Rather, the issue in G.L.V. was whether the best interests of the child could override the need to obtain the father’s consent. See 38 Kan. App. 2d at 146-47.
Furthermore, we note that statutes should not be interpreted to produce absurd or unreasonable results. See Pruter v. Larned State Hospital, 271 Kan. 865, 874, 26 P.3d 666 (2001). Under J.R.’s interpretation of K.S.A. 2010 Supp. 59-2136(d) and (h), a rapist’s consent to adoption would be required if a stepparent petitioned for adoption of a child conceived as a result of rape, but a rapist’s consent would not be required if someone other than a stepparent petitioned to adopt tire same child. We do not believe that the legislature intended such an absurd result.
In summary, we conclude that in stepparent adoptions where K.S.A. 2010 Supp. 59-2136(d) is applicable, the provisions of K.S.A. 2010 Supp. 59-2136(h) are not applicable. See 293 Kan. at 154, 159; S.J.R., 37 Kan. App. 2d at 29, 34-35. But in stepparent adoption cases — such as the present case — where K.S.A. 2010 Supp. 59-2136(d) is not applicable, the provisions of K.S.A. 2010 Supp. 59-2136(h) must be applied. Here, because J.R. was a presumed father under K.S.A. 38-1114(a)(5), K.S.A. 2010 Supp. 59-2136(d) did not apply, and the district court did not err in turning to the provisions of K.S.A. 2010 Supp. 59-2136(h)(l)(F) in this case.
Clear and Convincing Evidence of Rape
We “review the facts of the case in the light most favorable to the prevailing party below to ascertain whether the trial court’s decision is properly supported by substantial competent evidence.” J.M.D., 293 Kan. at 171. “Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined.” Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009). Because we have found that the district court correctly proceeded under K.S.A. 2010 Supp. 59-2136(h), the evidence supporting its decision must also be clear and convincing — highly probable — when viewed in a light most favorable to the prevailing party. See In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008) (“[T]he appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.”).
Under K.S.A. 2010 Supp. 59-2136(h)(l)(F), the consent of a natural father to an adoption is not required if it is found by clear and convincing evidence that the child was conceived as a result of rape. Here, the district court heard testimony from several witnesses regarding the circumstances surrounding the conceptions of B.T.M. and E.A.K.M. Ultimately, the district court found the testimony of A.S., M.S. and A.L. to be more credible than that of J.R., and we cannot replace our judgment for that of the district court regarding questions of fact.
Rape under K.S.A. 2010 Supp. 59-2136(h)(l)(F) refers to conduct that would be criminal under K.S.A. 2010 Supp. 21-3502. See In re Adoption of S.A.M., 36 Kan. App. 2d 894, 897, 147 P.3d 158 (2006). Rape is “sexual intercourse with a person who does not consent to the sexual intercourse . . . when the victim is overcome by force or fear... or when tire victim is incapable of giving consent because of the effect of any alcoholic liquor . . . , which condition was known by the offender or reasonably apparent to the offender.” K.S.A. 2010 Supp. 21-3502(a)(l)(A), (C). But unlike a criminal case where rape must be proven beyond a reasonable doubt, rape need only be proven by clear and convincing evidence under K.S.A. 2010 Supp. 59-2136(h)(l)(F). See S.A.M., 36 Kan. App. 2d at 899.
Here, A.L. testified that on the night of B.T.M.’s conception, she heard A.S. telling J.R. “no, no, no” and “stop” from behind the locked bathroom door. This evidence supports a finding that A.S. did not consent to having sex with J.R. There is also evidence in the record that A.S. was under the influence of alcohol at the time of the sexual encounter that resulted in B.T.M.’s conception and that A.S. was therefore incapable of giving her consent. In fact, A.S. testified that it was not until a paternity test conclusively established that J.R. was die father of B.T.M. that she realized that she had been raped. Furthermore, M.S. testified that J.R. later admitted to him that he had raped A.S. in the bathroom. This testimony alone, if believed, is clear and convincing evidence that B.T.M. was conceived as the result of rape. Thus, we find substantial evidence in the record upon which a rational factfinder could find it highly probable that B.T.M.’s conception was the result of rape, and we will not replace our judgment for that of the district judge who actually heard the evidence presented by the parties.
As to E.A.K.M., we need not decide whether she was conceived as a result of rape. Rather, as discussed in the following section, we find that there is sufficient evidence in the record to establish by clear and convincing evidence that J.R. failed to assume the duties of a parent as to E.A.K.M. For that reason, J.R.’s consent to the adoption of E.A.K.M. was not required.
Failure to Assume the Duties of Parent as to E.A.K.M.
Even if the evidence that E.A.K.M. was conceived as a result of rape is considered not to be clear and convincing, the district court appropriately found that J.R. had failed to assume the duties of a parent as to this child. Under K.S.A. 2010 Supp. 59-2136(h)(l)(G), consent is not necessary if it is found, by clear and convincing evidence, the father had failed or refused to assume the duties of a parent for the previous 2 years. The district judge concluded that as to E.A.K.M., J.R. had “failed or refused to assume the duties of a parent for more than two consecutive years next preceding the filing of the petition.” This finding is sufficient to terminate J.R.’s rights to E.A.K.M. without his consent under K.S.A. 2010 Supp. 59-2136(d) or (h)(1)(G). But under subsection (h)(1)(G), this finding must have been highly probable to a rational factfinder.
In determining whether a father has failed or refused to assume the duties of a parent, a rebuttable presumption arises when the father has failed to provide a substantial portion of the child support as required by judicial decree. K.S.A. 2010 Supp. 59-2136(d), (h)(1)(G), and (h)(3). As of April 28, 2008, J.R. was $3,796 behind in payments to E.A.K.M. He was ordered to pay $115 a month since then, and he had only made one payment of $126 that came from an income tax withholding. The lack of payment triggered the presumption, and the court considered the single, involuntary payment as incidental. The court decided, within its discretion, to disregard this incidental payment. K.S.A. 2010 Supp. 59-2136(h)(2)(B). J.R. provided nothing else relevant to rebut the presumption. Because no evidence rebutted the presumption, the judge’s finding that J.R. had failed or refused to assume the duties of a parent as to E.A.K.M. was highly probable. Thus, the district court did not commit error.
J.R. argues, for the first time on appeal, that the payments made to B.T.M. should be considered payments to the family — including E.A.K.M. — and thus the presumption was not triggered. But issues not raised below cannot be raised on appeal, and the failure to support an argument with authority is no different than failing to brief an issue. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010); In re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009). Even if J.R. had asserted this argument before the district court, however, we do not find it to be persuasive or supported by the evidence presented at the adoption hearing.
J.R. cites to In re Adoption of Baby Girl S., 29 Kan. App. 2d 664, 667, 29 P.3d 466 (2001), aff'd 273 Kan. 71, 41 P.3d 287 (2000), which held that in order to avoid triggering the presumption a father is not required to pay the full amount of support. But Baby Girl S. did not address the issue of whether support payments to one child should be considered support payments to the family as a whole. And we can find no authority to support J.R.’s argument.
Nevertheless, a review of the record reveals that J.R. made only one child support payment on behalf of E.A.K.M. in the amount of $126. And an order on April 28, 2008, found J.R. had a child support arrearage of $3,796 as to E.A.K.M. Further, as of February 10, 2011, J.R. had a child support arrearage of $9,051.12 as to B.T.M. Hence, J.R.’s total child support arrearage for the two children was at least $12,847.12. Thus, eyen if tire amount of child support paid for both children is considered together, J.R.’s support of E.A.K.M. was still woefully inadequate.
Best Interests of the Children
Under K.S.A. 2010 Supp. 59-2136(h)(2)(A), the district court can consider die best interests of the child as a factor in determining whether to terminate parental rights. Viewing the evidence in the record in the light most favorable to M.S. as the prevailing party, we find that a reasonable factfinder could conclude that it was highly probable that the termination of J.R.’s parental rights and the adoption were in the best interests of both B.T.M. and E.A.K.M. Thus, we conclude that the district court did not commit error.
The district court found that the adoption was in the best interests of both children because M.S. had stable employment, had a good relationship with the children for several years, and that J.R. had not been fulfilling the duties of a parent. Moreover, the district court considered evidence that J.R. had not protected B.T.M. from cigarette smoke, had raped his mother during a parenting time visit, and had failed to contact either child for approximately 3 years. We find each of these findings to be supported by substantial evidence in the record.
Affirmed.
Green, J.: I dissent from that part of the majority opinion which holds that the parental rights of J.R., the natural father of B.T.M., should be terminated under K.S.A. 2010 Supp. 59-2136(h)(l)(F). This statute allows the termination of a father’s parental rights if a child is conceived because of rape.
When a trial court terminates a person’s parental rights based on factual findings made under K.S.A. 2010 Supp. 59-2136(h)(l), those factual findings will be reviewed on appeal to determine if, after reviewing all the evidence in the light most favorable to the prevailing party, the findings were highly probable, that is, supported by clear and convincing evidence, that the parent’s rights should be terminated. See In re B.D.-Y., 286 Kan. 686, 705-06, 187 P.3d 594 (2008).
Conception of B.T.M.
In the trial court’s memorandum of decision on the conception of B.T.M., it held that A.S. “did not consent to the [sexual] intercourse [with J.R.] and was overcome by force or fear contrary to K.S.A. 21-3502.” So, the trial court concluded as a matter of law that J.R. raped A.S. and that J.R.’s consent was not needed for the adoption of B.T.M. Because issues of law are based on issues of fact, issues of law can only be settled by a testing of such facts.
A. S. s testimony
A.S. testified that she did not remember the facts about the force or fear used by J.R. in committing the alleged rape. Moreover, A.S. testified that she never reported the alleged rape incident to the police. Since A.S. has no memory about the details of the alleged rape, one cannot infer from A.S.’s lack of memory that it was highly probable that J.R. raped A.S.
A.L.’s testimony
A.L., A.S.’s friend, testified that she heard A.S. saying “no, no, no,” and “stop.” A.L. acknowledged that she did not see what happened inside the bathroom between A.S. and J.R. She also testified that she banged on the bathroom door and asked J.R. to open the bathroom door. A.L. further testified that when J.R. did not open tire door, she walked to another room in tire house and waited for A.S. and J.R. to come out of the bathroom. A.L. testified that A.S. and J.R. were in the bathroom for approximately 1 hour. A.L. further testified that when J.R. and A.S. came out of the bathroom, she, along with one of her friends, told J.R. that he needed to leave. J.R. left the house and sat in A.S.’s car. A.L. testified that A.S. later walked to her car and that she and J.R. left in her car together.
From the record, it is readily apparent that A.L. and A.S. were good friends. A.L. testified that she had known A.S. all her life and that A.L.’s mother had been A.S.’s babysitter. Yet, when J.R. was allegedly raping A.S., for almost an hour, A.L. and her two friends, who were also in the house, did nothing to help A.S. Indeed, A.L. testified that she did not call the police during or after the alleged rape. While J.R. sat alone in A.S.’s car, it would have been the perfect time for A.S. or A.L. to call the police and report the alleged rape.
It is essential to the credibility of a witness’ testimony that he or she had an opportunity to acquire the knowledge he or she claims to possess. A witness may have been at the place where the event occurred, and yet the witness may not have been in a situation to accurately observe the event. That situation exists in this case. For example, A.L. testified that she did not observe the alleged rape. She only heard A.S. say “no, no, no,” and “stop.” It is well known that witnesses not only have misunderstood what they have heard, but also they may have erred in repeating it.
M. S. ’s testimony
M.S., A.S.’s husband, testified that J.R. admitted to him that he had raped A.S. in the bathroom. Nevertheless, M.S. was directly involved in the adoption proceeding. Moreover, M.S. had a stake in the outcome of the adoption action. So, M.S. was an interested witness. Generally, the testimony of a disinterested witness, all things being equal, is preferred to that of an interested witness.
In addition, the interest of a witness supplies the foundation for an argument, and often a persuasive one, against the value of an interested witness’ testimony. For example, while testifying, M.S. showed that he was not an objective witness when he failed to properly respond to a direct examination question put to him and blurted out that J.R. was a liar:
“Q. Okay. And did he [J.B.] also admit to you that people were pounding on the door trying to get in?
“A. Yes. But he — he—he lied when he said he ha[d] excuse; that she asked him to have sex with [her]. And that was not true. She was completely out.”
How would M.S. know that A.S. was unconscious when he was not a witness to this alleged event? Thus, he would have had to learn about this alleged fact (that A.S. was unconscious) from someone else. Moreover, based on his testimony, M.S. considered this alleged fact to be true. As an interested witness, M.S.’s testimony clearly showed a bias toward the success of the adoption proceeding.
The majority explains that it was natural for A.S. to forget or not remember the facts of the alleged rape because she was highly inebriated from drinking alcohol. Yet, the trial court specifically held in its memorandum decision that A.S. “did not consent to the [sexual] intercourse [with J.R.] and was overcome by force or fear contrary to K.S.A. 21-3502.” Indeed, the trial court’s memorandum decision lacks any specific holding about A.S. being incapable of giving consent because of her consumption of alcohol.
Normally, a litigant must object to inadequate findings of fact and conclusions of law at the trial court level in order to preserve the issue for appeal. See Gilkey v. State, 31 Kan. App. 2d 77, 77-78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003). Yet, one of J.R.’s principal arguments on appeal relates to whether sufficient evidence existed for the trial court to conclude that his parental rights should be terminated under K.S.A. 2010 Supp. 59-2136(h)(l)(F). When a trial court has made findings under K.S.A. 2010 Supp. 60-252, it is unnecessary for a party to object to such findings to question the sufficiency of the evidence on appeal. Under K.S.A. 2010 Supp. 60-252(a)(4), it states as follows:
“A party may later question the sufficiency of the evidence supporting the findings, whether or not the party requested findings, objected to them, moved to amend them or moved for judgment on partial findings.”
Thus, the trial court’s admitted findings, even in the absence of an objection to the trial court’s findings, may be considered.
As stated earlier, the trial court failed to find in its memorandum decision that A.S. was under the influence of alcohol when the sexual intercourse that resulted in B.T.M.’s conception occurred. Moreover, the trial court made no written finding that A.S. had been incapable of giving consent to the sexual intercourse with J.R. that resulted in B.T.M.’s conceptions because of her consumption of alcohol. Thus, the trial court failed to make a finding concerning this alternative way of committing rape.
The majority also points out that the trial court determined that the testimony of A.S., M.S., and A.L. to be more credible than the testimony of J.R. Even so, it would be a logical non sequitur to conclude that because A.S. and her witnesses were more credible than J.R. that therefore A.S. was raped by J.R. But this is exactly what the trial court did. In concluding that it was highly probable that J.R. raped A.S. because her testimony was persuasive and credible, the trial judge stated:
“With regard to the conception of both children, I found the testimony of the natural mother to be persuasive and credible. And also the testimony of the very first witness corroborates that what I deemed to be a credible testimony from her. [A.L.] So I think that — so their version of the — the conception is that they were rape, I found that that evidence was clear and convincing.”
Yet, given the earlier described established facts, one could not infer that it was highly probable that A.S. was raped based on the trial court’s holding (that A.S. did not consent to have sexual in tercourse with J.R. and that she was overcome by force and fear). The key to a logical inference is the reasonable probability that the conclusion flows from the evidentiary data. Although a factfinder is entitled to draw reasonable inferences from circumstantial evidence, reasonable inferences themselves must be more than speculation and conjecture. See State v. Burton, 235 Kan. 472, Syl. ¶ 3,681 P.2d 646 (1984) (stating that “[pjresumptions and inferences may be drawn only from facts established and presumption may not rest upon presumption or inference on inference”). The Burton court further stated that “[wjhat is meant by this rule is that an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” 235 Kan. at 477.
Moreover, inferences cannot be drawn from facts and conditions merely imagined or assumed. State v. Williams, 229 Kan. 290, 299-300, 623 P.2d 1334, reh. denied 229 Kan. 646, 650, 630 P.2d 694 (1981). Here, the trial court and the majority assumed that A.S. was raped because the testimony of A.S., M.S., and A.L. was more credible than the testimony of J.R. As stated earlier, the fact that A.S.’s evidence was more credible than J.R.’s evidence does not mean that the alleged rape of A.S. was highly probable based on the established facts.
For example, some of the evidence which weakens the probative value of A.S.’s alleged rape evidence is as follows: (1) A.S. had no memory about the details of either of the alleged rapes which resulted in the conceptions of B.T.M. and E.A.K.M. Yet, A.S. could specifically remember that she did not consent to sexual intercourse with J.R. on either occasion when the two children were conceived. Moreover, A.S. could remember the details of what she was doing and where she was when B.T.M. and E.A.K.M. were conceived, and yet she contends that she cannot remember other things directly connected with the conception of these children; (2) A.S. failed to report either of tire alleged rapes to the police; (3) A.S. and J.R. left together in A.S.’s car after the alleged rape which resulted in the conception of B.T.M.; (4) Although A.L. testified that she believed that J.R. had raped her best friend, A.L. allowed A.S. to leave with J.R. without ever calling the police or reporting the alleged rape incident to the police. Moreover, A.L. was not in a situation to accurately observe the alleged rape which resulted in the conception of B.T.M.; and (5) M.S.’s testimony was not objective and was clearly slanted in support of the adoption of B.T.M. and E.A.K.M.
The testimony of the above-described witnesses weakened the positive evidence of the alleged rapes. Yet, there is no discussion in the record by the trial court showing that it weighed this evidence against the positive evidence of the alleged rapes. If the trial court had done this weighing of the evidence, it would have seen that the positive evidence in support of the alleged rapes had been completely neutralized by the above described evidence. Thus, the established facts would have raised only a mere possibility that A.S. had been raped in the way the trial court had held.
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Arnold-Burger, J.:
In order to appeal a case brought under die Revised Kansas Code for Care of Children, K.S.A. 2010 Supp. 38-2201 el seq., one must be a party or an interested party in the case. In addition, only certain orders are appealable. K.S.A. 2010 Supp. 38-2273. The Secretary of Social and Rehabilitation Services (SRS) appealed a placement order made by a magistrate judge to the district court. The district court found diat it lacked jurisdiction to hear SRS’s appeal because SRS was neitiier a party nor an interested party as defined by the statute, nor was a placement order an appealable order. SRS appeals the district court’s denial of its appeal. Because we likewise find that we lack jurisdiction to consider an appeal of a placement order by a nonparty, we are required to dismiss this appeal.
Factual and Procedural History
C.E. was declared a child in need of care (CINC) under the Revised Kansas Code for Care of Children and placed in the custody of SRS. See K.S.A. 2010 Supp. 38-2201 etseq. C.E. repeatedly ran away from her placement locations. The magistrate judge filed an order requiring C.E. to remain in placement. The judge informed C.E. that if she violated this order, she could be placed in a secure care facility. C.E. violated the order by running away from her placement. As promised, the judge ordered C.E. to be placed in a secure care facility for 30 days. After the 30 days, C.E. was to return to the custody of SRS for further out-of-home placement and SRS was to pay for all costs pertaining to C.E.’s detention in the secure care facility.
SRS appealed the magistrate judge’s order that SRS was required to pay for all costs associated with C.E.’s detention at the secure care facility. SRS claimed the judge’s order did not comply with K.S.A. 2010 Supp. 38-2260(f)(2), because it “ordered” instead of “authorized” placement in a secure care facility. Therefore, SRS contended that it was not required to pay the costs of C.E.’s detention. The district court denied SRS’s appeal for lack of jurisdiction. SRS appeals.
We Lack Jurisdiction to Hear and Decide This Appeal
We must first determine if we have jurisdiction to hear this appeal. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. If the record shows that the appellate court does not have jurisdiction, the appeal must be dismissed. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).
The right to appeal is entirely statutory, and we only have jurisdiction to entertain an appeal if the appeal is taken in the manner prescribed by the applicable statutes. Board of Sedgwick County Comm'rs v. City of Park City, 293 Kan. 107, 111, 260 P.3d 387 (2011). So we begin by examining the statute. The interpretation of a statute is a question of law over which an appellate court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
The Revised Kansas Code for Care of Children is the exclusive statutory authority for CINC cases. See K.S.A. 2010 Supp. 38- 2203(a) (“Proceedings concerning any child who may be a child in need of care shall be governed by this code . . .”). K.S.A. 2010 Supp. 38-2273(a) sets forth the procedure and requirements for an appeal brought in a CINC case. It provides that “[a]n appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.” So there are two requirements in order for this court to have jurisdiction over an appeal in a CINC case. First, the person or agency appealing an order must be a party or an interested party. Second, the only appealable orders are those regarding temporary custody, adjudication, disposition, finding of unfitness, or termination of parental rights. K.S.A. 2010 Supp. 38-2273(a).
Party or interested party
Both parties to this appeal agree that SRS was neither a party nor an interested party in the ongoing CINC case and this is consistent with the clear language of the statute.
Under K.S.A. 2010 Supp. 38-2202(v), “ ‘[p]arty’ means the state, the petitioner, the child, any parent of the child and an Indian child’s tribe intervening pursuant to the Indian child welfare act.” Although SRS is an agency of the State, it is the county or district attorney who represents the State at all stages of CINC proceedings. K.S.A. 2010 Supp. 38-2214. SRS is merely the referring agency. K.S.A. 2010 Supp. 38-2233. In addition, “Secretaiy” is separately defined in the same definitional section as the “secretary of social and rehabilitation services.” K.S.A. 2010 Supp. 38-2202(bb). “Secretary” is not included under the definition of “party.” It is clear that SRS is not a “party” as defined by the statute.
SRS is also not an “interested party” as that term is defined at K.S.A. 2010 Supp. 38-2202(m):
“ ‘Interested party’ means the grandparent of tire child, a person with whom the child has been living for a significant period of time when the child in need of care petition is filed, and any person made an interested party by tire court pursuant to K.S.A. 2010 Supp. 38-2241, and amendments thereto or Indian tribe seeking to intervene that is not a party.”
SRS was not made an interested party by the court pursuant to K.S.A. 2010 Supp. 38-2241. See In re H.R.B., 30 Kan. App. 2d 599, Syl. ¶ 1, 43 P.3d 887 (2002) (finding that SRS is generally not an interested party in a CINC proceeding).
Because SRS is neither a party nor an interested party, it does not have standing to bring an appeal under K.S.A. 2010 Supp. 38-2273. Moreover, even though SRS agrees that it is not a party or interested party, it does not indicate under what statutory authority it acquires a right to appeal in this case, nor are we able to locate any. We are instead referred to In re M.K.D., 21 Kan. App. 2d 541, 545, 901 P.2d 536 (1995), in support of its position that SRS is able to appeal even though it is not a party. But such an argument overstates this court’s holding in In re M.K.D.
M.K.D. was a juvenile who had been adjudicated in two separate prior proceedings as having committed acts that would constitute felonies if committed by an adult. Therefore, under the definition of “juvenile offender” in effect at that time, M.K.D. no longer fit the definition of a juvenile offender under the Kansas Juvenile Justice Code. 21 Kan. App. 2d at 542. However, for reasons not stated in the opinion, when he was arrested on yet a third felony, M.K.D. was taken before the Cowley County District Court, where he was adjudged a juvenile offender. M.K.D.’s case was transferred to Woodson County — M.K.D.’s home county — for a dispositional hearing as required by K.S.A. 38-1605. The Woodson County magistrate judge ordered M.K.D. placed in the Youth Center in Topeka. SRS filed a notice of appeal from the magistrate’s decision to the Woodson County District Court arguing that the court lacked jurisdiction over M.K.D. because he could no longer be classified as a juvenile offender. SRS asked the Woodson County District Court to find the Cowley County District Court judgment to be void because the court lacked subject matter jurisdiction. The Woodson County District Court agreed and found the Cowley County District Court order to be void.
The State contended that because SRS was not a party to the proceeding, it had no standing to challenge the Cowley County District Court adjudication. We found that SRS was merely attempting to bring the jurisdictional defect to the court’s attention and, while “appeal” may not have carried the correct label for a document filed by a nonparty, any error in labeling was harmless. We noted that the filing by SRS was not really an appeal and would have been more accurately titled “ ‘Notice of Prior Adjudications.’ ” 21 Kan. App. 2d at 546. But regardless of whether it was designated an “appeal” or not, the court had the responsibility to examine its own jurisdiction independent of anything from SRS, so any error was harmless. We did not specifically address the failure to comply with the appeal statute under the Kansas Juvenile Justice Code, K.S.A. 38-1681. We also noted that SRS could have filed an independent civil action to bar the magistrate judge from sending a nonjuvenile offender to a youth center. 21 Kan. App. 2d at 546.
So contrary to SRS’s assertion, In re M.KD. does not stand for the proposition that SRS has standing to appeal a judge’s ruling in a CINC case even though it is neither a party nor an interested party under the statute. The facts of In re M.K.D. were very unique, arose under a different statutory scheme — the Kansas Juvenile Justice Code — and are clearly distinguishable from this case. In this case, the district court recognized from the outset that SRS was not a proper party to appeal a placement order under the Revised Kansas Code for Care of Children.
In addition, SRS argues that because it was a nonparty, the magistrate judge had no authority to order SRS to do anything and that an appeal is its only means of redress. We disagree. As previously stated, SRS is a referring agency in CINC cases and the county or district attorney represents the interests of the State. Although there is a provision in K.S.A. 2010 Supp. 38-2214 allowing the attorneys for the Secretary to perform the duties of the county or district attorney in CINC cases anytime after disposition if there is a written agreement to that effect, there is no evidence of any such agreement in this case. Therefore, if SRS was dissatisfied with any ruling by the judge, it was required to bring its concerns to the county attorney to present to the court. Accordingly, the county attorney could have filed a motion to reconsider with the court under K.S.A. 2010 Supp. 38-2256, or, if it was an appealable order, the county attorney could have appealed the magistrate court’s order, but SRS had no independent authority to do so.
Moreover, as we stated in In re M.K.D., SRS could file an independent civil action to challenge the magistrate court’s order. For example, one approved method would be filing a petition for a writ of mandamus, which is a proceeding to compel some inferior court to perform a specified duty, which duty results from the operation of law. K.S.A. 60-801. Mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of tire law for the guidance of public officials in their administration of the public business. In re Administration of Justice in the 18th Judicial District, 269 Kan. 865, 871, 9 P.3d 28 (2000). Mandamus has been recognized as a means for nonparties to address court orders directed to them from which they have no statutory right to appeal. Svaty, 291 Kan. at 618 (discovery order directed to nonparty).
Finally, we recognize that there are published cases from this court that seem to allow SRS to appeal in this situation. See In re J.L., 21 Kan. App. 2d 878, 908 P.2d 629 (1995), rev. denied 259 Kan. 928 (1996) (county attorney brought action in CINC case moving the court to order SRS to reimburse the county for periods of detention, SRS appealed the order); In re T.D., 27 Kan. App. 2d 331, 3 P.3d 590, rev. denied 269 Kan. 933 (2000) (SRS appealed district court order requiring child in a CINC case to see a particular counselor and requiring SRS to pay for counseling). But it does not appear that the statutory authority of SRS to appeal was ever challenged in these cases, as it is here. In fact, SRS may have taken on the role of the State by separate written agreement as set out in K.S.A. 2010 Supp. 38-2214, thus becoming a proper party. We are unable to determine SRS’s status from the opinions. Therefore, we cannot draw any conclusions from them.
Accordingly, because SRS is neither a party nor an interested party in this case under K.S.A. 2010 Supp. 38-2273(a), it has no standing to appeal and this court lacks jurisdiction. But even if SRS was considered an interested party, we would still conclude this court has no jurisdiction because of the second requirement in the statute.
Appealable Orders
K.S.A. 2010 Supp. 38-2273 provides that the only appeals which may be taken under the Revised Kansas Code for Care of Children (Code) are from an order of temporary custody, adjudication, disposition, finding of unfitness, or termination of parental rights. If the order here does not fit into one of those five categories, the order, by statute, is not appealable. We find that the order at issue here was not one of the statutorily enumerated orders, but was instead a placement order. We examine the definitions of each.
According to K.S.A. 2010 Supp. 38-2242 and K.S.A. 2010 Supp. 38-2243, a “temporary custody order” identifies the person or agency that will have temporary custody of a child after the court determines that the child needs protection. This was done in C.E.’s case on January 21, 2009.
“The terms adjudication, disposition, and termination of parental rights are all terms of art under the Code, each carrying its own meaning and each occurring in a certain sequence. [Citation omitted.]” In re D.M.M., 38 Kan. App. 2d 394, 398, 166 P.3d 431 (2007). Under K.S.A. 2010 Supp. 38-2251, “adjudication” refers to a determination that a child is in need of care, which occurred for C.E. on January 21, 2009. See In re D.M.M., 38 Kan. App. 2d at 398.
A “disposition” refers to the court’s custody order after a child has been adjudicated a child in need of care under K.S.A. 2010 Supp. 38-2255. See In re D.M.M., 38 Kan. App. 2d at 398-99. This occurred on January 21, 2009, in C.E.’s case. Although SRS makes the argument that the magistrate court’s order was a disposition order because it may have taken custody away from SRS, SRS fails to acknowledge that an “order of disposition” in the Code specifically refers to an order that is “entered within 30 days following adjudication, unless delayed for good cause shown.” K.S.A. 2010 Supp. 38-2253(b). The order SRS is attempting to appeal was made on July 6,2010, well after 30 days from the date of the adjudication.
A “finding of unfitness” refers to one reason for terminating parental rights under K.S.A. 2010 Supp. 38-2269. There is no indication in the record that this occurred in C.E.’s case. In addition, “termination of parental rights” is controlled by K.S.A. 2010 Supp. 38-2266. It is obvious that the placement order at issue did not involve a finding of unfitness or the termination of the parental rights of C.E.’s parents.
Instead, tire order from which SRS attempts to appeal was a placement order under the authority of K.S.A. 2010 Supp. 38-2260(f)(2). The court entered an “Order to Remain in Placement Pursuant to K.S.A. 38-2260.” Subsequently, following an evidentiary hearing, the court found that C.E. had violated the order of placement by running away and “ordered” C.E. placed in a secure care facility. Contrary to the argument propounded by SRS on appeal, whether this placement order met the requirements of K.S.A. 2010 Supp. 38-2260(f)(2) when it “ordered” instead of “authorized” placement in a secure care facility does not change the nature of the proceeding. Placement orders are not listed as appealable orders under K.S.A. 2010 Supp. 38-2273. As this court stated in In re A.F., 38 Kan. App. 2d 742, 746, 172 P.3d 63 (2007), “[w]e simply cannot create a new category of appeals so that appeals like this one may be heard. Nor should we.”
In summary, because SRS is neither a party nor an interested party as those terms are statutorily defined, it had no standing to appeal in this CINC case. Moreover, even if it were a party or interested party, the order SRS is attempting to appeal is not one of the five types of appealable orders enumerated in K.S.A. 2010 Supp. 38-2273. Accordingly, this court does not have jurisdiction to decide this appeal.
Appeal dismissed. | [
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Brazil, J.:
This appeal concerns the fate of a large oak tree on the property of Lonzella Brown. The appellant, ConocoPliillips Pipeline Company (Conoco), owns an easement giving it the right to “lay, maintain, operate, inspect and remove” its high-pressure gasoline pipeline which runs through Brown’s property. The pipeline was laid in the 1960s, and since that time the tree has sprung up above the pipeline. In 2009, Conoco sought to cut down the tree on the basis that it interfered with its ability to maintain and inspect the pipeline. Brown eventually obtained a permanent injunction preventing Conoco from removing the tree unless an emergency arose. On appeal, Conoco argues that the court erred in finding that the tree did not constitute a material obstruction to their easement. We vacate the injunction and remand.
Conoco owns a 10" high-pressure gasoline pipeline which runs from Paola to Wyandotte County. The pipeline passes through Brown’s property in Wyandotte County. The pipeline was laid in 1963 by Conoco’s predecessor, Phillips Petroleum Company (Phillips). That same year, Phillips purchased an easement from the people who owned tire property at the time. The easement gen erally describes the area on the property where the pipelines were to be laid but did not expressly specify the width, length, or location of Phillips’ rights for ingress and egress. The agreement merely stated that Phillips had the right to “lay, maintain, operate, inspect and remove” the two pipelines on the property. Otherwise, the landowners were vested with the right to “fully use and enjoy said premises except for the purposes hereinabove granted.” The easement was recorded with the Wyandotte County Register of Deeds in 1963. The pipeline has been used continuously since being constructed.
When Brown bought the property in 2000, the tree in question was already present. The tree is a 30-year-old pin oak and is 60' to 70' tall. Conoco began a tree-clearing project along the 53-mile route of the pipeline from Paola to Wyandotte County. Conoco removed a number of trees in the course of its tree-clearing project. In October 2009, Conoco informed Brown that it needed to remove the tree. Brown refused to allow Conoco to do so. Brown filed a petition for injunctive relief in Wyandotte County District Court seeking to enjoin Conoco from entering her land and cutting the tree down. Brown subsequently obtained a temporaiy restraining order against Conoco. Conoco counterclaimed breach of contract against Brown and for a declaratory judgment confirming its right to remove the tree.
The case proceeded to a hearing before the district court on February 9, 2010. Brown testified that she did not want to lose the tree because it is the only tree in her backyard, it shades her house and yard, and her granddaughter likes to play under it. She called a horticulturist, Phillip Hogan, as an expert, who testified that 80% or 90% of the tree’s roots were located within 3 feet of the surface. Hogan testified that tree roots take the path of least resistance, meaning that if they ran into the pipeline, they would go around it because soil is softer than the pipe. He testified that while the top of a tree moves with the wind, tree roots are stable and do not move. Hogan valued the tree at $12,000. However, in making this valuation, Hogan did not take the easement into consideration. He estimated that if the tree was cut down and a new one planted, Brown would be over 90 years old before the replacement tree would reach the current tree’s size.
On cross-examination, Hogan admitted the tree’s roots could extend over and across the pipeline if the pipeline was located within the first 3 or 4 feet of the ground’s surface. He conceded that the pipeline could be damaged by the tree’s roots if the pipeline is located close to the surface within a few feet of the tree, much in the same way that tree roots can damage a house’s foundation if the house is too close to a tree. He also admitted he did not know the depth at which the pipeline had been buried nor did he know the pipeline’s location in relation to the tree. Finally, Hogan admitted he knows nothing about gas pipelines or the safety concerns related to pipelines and tree roots.
Conoco called Michael Kemp, a claims consultant, and Todd Tullio, a regulatory compliance planning manager. Both Kemp and Tullio testified that the pipeline was located about 1 or 2 feet from the edge of the tree. Tullio was unsure of the precise depth at which the pipe had been buried in 1963 but estimated its present location was less than 36" under the ground’s surface. Tullio testified that the close proximity of the tree to the pipeline could damage the pipeline because the roots could rub the pipeline’s protective coating off, causing the pipe to corrode. Tullio explained that the pipeline moves when gasoline is being pumped through it and that the sustained friction between the pipeline and the roots could lead to the loss of the protective coating. The resulting corrosion of the pipeline could lead to a number of different problems, including large or small gasoline leaks, pipeline ruptures, environmental impacts, or possibly an explosion. He also presented pictures showing the effects tree roots can have on pipelines.
Tullio testified that if there were problems with the pipeline on Brown’s property, Conoco would be unable to excavate around the pipeline until die tree was cut down because of safety concerns and the inability to access the pipeline due to its close proximity to the tree. He estimated Conoco would be delayed from immediately accessing the pipeline by “at least a couple of days.”
He further testified that the tree also impeded Conoco’s ability to maintain the pipeline because it interfered with pipeline in spections mandated by federal regulations. Federal guidelines require Conoco to aerially inspect its pipelines 26 times per year. Conoco contracts with an aerial company which navigates the pipeline’s route and looks for a variety of things, including dead vegetation, debris, people digging or planting vegetation, and tire like. If federal auditors detect shrubs or trees that prevent them from examining the pipelines, they can serve the pipeline company a notice of probable violation (NOPV), which gives the company 160 days to clear the right-of-way or face a fine. Tullio explained by way of example that Conoco had received a NOPV on a different pipeline in 2008. He testified that the efforts to remove Brown’s tree were motivated in part by Conoco’s desire to prevent it from receiving an NOPV. However, Conoco has not received an NOPV because of the tree at this time.
In addition to the aerial inspection done eveiy 2 weeks, Conoco also inspects its pipelines once every 5 years by using “smart pigs,” which are electronic devices that run through the pipelines to detect depth, wall thickness, dents, or other anomalies. The most recent smart-pig test of the Paola/Wyandotte County pipeline revealed 74 anomalies, which Conoco addresses by excavating down to the pipeline and repairing the problem. Conoco addresses problems in order of their seriousness, with all problems attended to within 1 year of their detection.
After the close of the hearing, the district court took the case under advisement. On March 16, 2010, the district court issued its decision in a memorandum opinion. The district court noted that the issue before it was whether the tree interferes with Conoco’s rights under its easement to maintain and inspect the pipeline, when balanced against Brown’s right to “fully use and enjoy” her property. On the facts before it, the district court concluded the tree did not constitute a material interference to Conoco’s ability to maintain tire pipeline. There are currently no anomalies in the pipeline requiring maintenance, and in the event it became necessary for Conoco to excavate the pipeline, the tree would not prevent it from doing so. In other words, the district court concluded the tree would only make excavation more difficult but would not prevent Conoco from accessing the pipeline if the need arose.
The district court also concluded the tree did not constitute a material interference to Conoco’s ability to inspect the pipeline. The district court noted that Conoco had not complained about the tree for 30 years, and although it could not aerially inspect the pipeline, it still had the abiliiy to use whichever means of inspection it had used for the previous 3 decades. In sum, the district court held that the tree did not materially interfere with Conoco’s easement sufficiently to outweigh Brown’s right to fully use and enjoy her property. Thus, the district court awarded Brown an injunction enjoining Conoco from removing the tree. However, the district court provided that in the event of an emergency requiring immediate access to the pipeline, Conoco has the right to take any necessary action in the area of the tree.
Conoco appeals.
The essence of Conoco’s argument is that the district court erred in the injunction because the evidence shows that the tree substantially interferes with Conoco’s easement.
When the trial court has made factual findings and conclusions of law, the appellate court’s function is to determine whether substantial competent evidence supports the trial court’s findings of fact, and whether the findings are sufficient to sustain its conclusions of law. Southern Star Central Gas Pipeline, Inc. v. Cunning, 37 Kan. App. 2d 807, 811, 157 P.3d 1120 (2007). Substantial evidence is evidence that contains both relevance and substance and which provides a substantial factual basis for the resolution of the issues. When reviewing a trial court’s decision, an appellate court must regard as true the evidence and all inferences that can be drawn from the evidence to support the trial court’s factual findings and must ignore any contradictory evidence or other inferences that could be drawn therefrom. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993). The district court’s conclusions will not be disturbed on appeal even though there may be evidence which may support a different outcome. Haag v. Dry Basement, Inc., 11 Kan. App. 2d 649, 653, 732 P.2d 392, rev. denied 241 Kan. 838 (1987).
The parties agree that Conoco holds a properly recorded pipeline easement across Brown’s property, giving Conoco the right to “lay, maintain, operate, inspect and remove” its pipeline. Once an easement has been formed, the landowner is the servient tenant and the holder of the easement is the dominant tenant. Potter v. Northern Natural Gas Co., 201 Kan 528, 530-31, 441 P.2d 802 (1968). The servient tenant may malee any use of his or her property which is consistent with or not calculated to interfere with the use of the easement granted. Courts determine the character and extent of each parties’ rights under the easement by examining the language of the grant and the extent of the dominant tenant’s use of the easement at the time it was granted. Cunning, 37 Kan. App. 2d at 812. An obstruction or disturbance of an easement is something that wrongfully interferes with the privilege to which the dominant tenant is entitled by making its use of the easement less convenient and beneficial. Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238, 243, 787 P.2d 716 (1990). However, an obstruction or disturbance of an easement is not actionable unless it is of such a material character as to interfere with the dominant tenant’s reasonable enjoyment of the easement. Aladdin Petroleum Corporation v. Gold Croton Properties, Inc., 221 Kan. 579, 588, 561 P.2d 818 (1977).
The language of the grant forming the easement determines whether it is a specific easement or a blanket easement. A specific easement is formed when the width, length, and location of the easement for ingress and egress have been expressly described in the instrument creating the easement. In a specific easement, the terms of the grant or reservation are controlling, and no efforts should be made to consider what may be necessary or reasonable use of the easement. Aladdin, 221 Kan. at 584. In other words, if the language of the instrument creating the easement mandates the easement be a specific width, the servient tenant may not encroach upon the right-of-way within the area described. Wietham, 246 Kan. at 244. In a blanket easement, on the other hand, the instrument creating the easement does not delineate specific di mensions of the easement for ingress and egress as it crosses the servient tenant’s property. See Cunning, 37 Kan. App. 2d at 813; Aladdin, 221 Kan. at 585.
Here, as Conoco notes, its right-of-way in this case has some elements of both a specific easement and a blanket easement. On one hand, the wording of the original instruments describes general areas where the pipelines are to be laid. But on the other, the right-of-way contract does not specify the exact width or location of the easement for ingress and egress within which the servient tenant may not encroach. Consequently, the present easement is best classified as a blanket easement because Conoco’s rights are imprecise and more difficult to enforce than they would be if the instrument explicitly described the boundaries of the easement.
To summarize, to obtain the injunction it sought, Brown was required to show that tire tree did not constitute a material encroachment that interfered with Conoco’s reasonable enjoyment of the easement. See Cunning, 37 Kan. App. 2d at 813-14; Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, 462, 726 P.2d 287 (1986) (“At the trial level, tire burden of proof in an injunction action is upon the movant.”). The district court concluded the tree was not a material obstruction to Conoco’s easement. The question before us is whether that conclusion is supported by substantial competent evidence.
Both Conoco and Brown cite to this court’s decision in Cunning to support their claims that they should prevail in this case. In Cunning, the dominant tenánt held a blanket easement over the servient tenant’s property, giving the dominant tenant the right to maintain and inspect its pipeline as necessary or convenient. The servient tenant built a garage adjacent to the pipeline, with a 41-inch clearance between the pipeline and the wall of the garage. The dominant tenant brought a petition for ejectment, demanding the servient tenant remove the garage. At a bench trial, an expert for the dominant tenant initially testified that excavation around the pipeline would be impossible if the garage were only 41 inches away. On cross-examination, however, the expert admitted it may be possible to excavate the pipeline if certain procedures took place. Two experts for the servient tenant testified that the pipeline could be safely excavated despite the pipeline’s close proximity to the wall. The district court subsequently denied the dominant tenant’s petition for ejectment, finding that the dominant tenant had failed to meet its burden of proof that the garage constituted an unreasonable interference with its easement. 37 Kan. App. 2d at 810-11. The Court of Appeals affirmed the district court’s decision on the basis that it was supported by substantial competent evidence. The court declined to reweigh the evidence or the credibility the district court had assigned to the testimony of the witnesses each side had called. 37 Kan. App. 2d at 815.
There is a significant difference between this case and Cunning. In Cunning, evidence was presented on both sides of the controlling issue of that case — whether the garage caused a material impediment to the dominant tenant’s easement by making excavation of the pipeline unreasonably difficult or impossible. The dominant tenant’s expert answered “yes,” the servient tenant’s experts answered “no.” The district court in Cunning found the servient tenant’s experts to be more convincing. In contrast, the evidence that the tree roots could significantly harm the pipeline was undisputed in this case. The district court found:
• the majority of the tree roots were in the first 3 feet from the ground’s surface;
• the pipeline was within 2 feet of the tree and likely buried at a depth of 3 feet, though it might be closer to the surface at this time;
• the close proximity of the tree to the pipeline would make excavation of the pipeline more difficult, but still possible;
• aerial surveillance is an important means of inspecting the pipeline, and the tree impairs Conoco’s ability to aerially inspect portions of the pipeline on Brown’s property;
• Conoco could incur an NOPV because of tire tree, meaning Conoco would face a penalty unless it did not remove the tree.
Despite the above facts, the district court concluded the tree did not constitute a material interference to Conoco’s ability to maintain the pipeline. The district court’s conclusions are not consistent with its factual findings or the evidence presented. The district court heard undisputed evidence that the close proximity of the pipeline to tree roots can cause significant problems. The testimony that tree roots can damage pipelines was completely uncontested at trial. Brown’s expert, Hogan, testified that tree roots travel in the path of least resistance. But by Hogan’s own admission, he is not an expert when it comes to tree roots and their impact on pipelines. Furthermore, Hogan admitted the tree’s roots could extend over and across the pipeline and that the pipeline could be damaged similar to the way a house’s foundation can be damaged by tree roots. If there were any evidence that the tree and the pipeline could coexist in such dose proximity, the district court’s decision should be affirmed. But the facts of this case simply do not support such a conclusion.
The risk of damage the tree roots could cause to the pipeline alone is sufficient to show that the tree materially interferes with Conoco’s privilege to use its easement, let alone the undisputed testimony that the tree causes a significant interference with Conoco’s ability to inspect its pipeline. Considering there was no dispute that the tree roots can cause significant harm to the pipeline, the district court’s conclusion that the tree did not cause a material interference with Conoco’s easement was unsupported by substantial competent evidence.
Finally, we must determine whether the district court erred by awarding Brown an injunction. Conoco contends the district court erred in awarding an injunction because the legal requirements for the granting of an injunction were not met in this case.
The grant or denial of injunctive relief is an action in equity and involves the exercise of judicial discretion. Appellate courts generally will not interfere with a district court’s grant or denial of an injunction unless the district court abused its discretion. However, when an appeal frames questions of law, including the threshold legal requirements for injunctive relief in a particular case, appellate review is unlimited. Friess v. Quest Cherokee, 42 Kan. App. 2d 60, 63-64, 209 P.3d 722 (2009).
The district court in this case awarded a prohibitory injunction, as opposed to a mandatory injunction. A mandatory injunction requires the performance of an act, while a prohibitory injunction requires a party to refrain from performing a particular act. Wietham, 246 Kan. at 242. There are four elements Brown was obligated to prove in order to obtain injunctive relief:
“ ‘(1) substantial likelihood that the movant will eventually prevail on tire merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injuiy to the movant outweighs whatever damage tire proposed injunction may cause tire opposing parties; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.’ [Citations omitted.]” Lenox, 11 Kan. App. 2d at 462.
Conoco argues the district court made inadequate findings to support some of the above required elements. For example, Conoco argues monetary damages would have been sufficient to compensate Brown for the loss of her tree. Conoco further contends the threat of injury it faces greatly outweighs the possible injuries Brown would incur if the tree was removed, and that the tree causes undue risks to the public.
It is unnecessary to examine whether the district court erred by failing to weigh the above four elements. Before the above elements can be applied, the first question which must be addressed is whether an equitable remedy is appropriate in the first place. “[Ejquity never flies in the face of positive law, nor is it invokable to unsettle thoroughly established legal principles.” Moore v. McPherson, 106 Kan. 268, 273, 187 P. 884 (1920). A party cannot obtain an equitable remedy unless there is a wrong for which a remedy is necessary. First Nat’l Bank ir Trust Co. v. Wetzel, 42 Kan. App. 2d 924, 929, 219 P.3d 819 (2009). Thus, to be entitled to an injunction, Brown must have suffered a wrong requiring an equitable remedy.
Brown has not been wronged in this case. There is no dispute that Conoco has the right under its easement to maintain the pipeline. The undisputed facts of this case show that the tree materially obstructs Conoco’s reasonable enjoyment of its easement. There is therefore no reason to analyze the above elements. The district court’s injunction is vacated and the matter remanded so that Conoco can exercise the privileges it enjoys under the easement.
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Leben, J.:
When a small amount of marijuana was found in inmate Waddell Warren’s socks, he was convicted of introducing a controlled substance into a correctional facility and sentenced to an additional 122 months in prison. Warren asked that he be given a shorter sentence than called for under our sentencing guidelines, but the district court ruled that a lesser departure sentence — based on an argument that the amount of drugs was very small and thus less than typical for the offense — could not be considered.
We face two primary questions in deciding Warren’s appeal. First, we must determine whether we have jurisdiction to consider the appeal at all. Warren received the presumptive sentence for his offense and criminal-history score, and we have no jurisdiction to review a presumptive sentence. K.S.A. 21-4721(c)(l). Second, if we do have jurisdiction, we must determine whether tire district court’s ruling that a less-than-guidelines sentence cannot be given based on the amount of drugs was correct.
Warren also raises a final issue — that the State failed to bring him to trial within the time limit set under the Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq., which applies to criminal charges against inmates held in Kansas. We have found no merit to that claim since Warren had waived his speedy-trial rights and had caused a trial continuance by seeking new counsel.
I. We Have Jurisdiction to Consider the Limited Question Presented in this Appeal, Even Though the Defendant Received a Presumptive Sentence.
We begin with the jurisdictional question. To determine the answer, we must consider the language of K.S.A. 21-4721(c)(l) as well as the holdings in three cases: State v. Huerta, 291 Kan. 831, 247 P.3d 1043 (2011); State v. Dillon, 44 Kan. App. 2d 1138, 244 P.3d 680 (2010); and State v. Cisneros, 42 Kan. App. 2d 376, 212 P.3d 246 (2009).
K.S.A. 21-4721(c)(l), as it stood at the time Warren filed his appeal, provided that an “appellate court shall not review... [a]ny sentence that is within the presumptive sentence for the crime . . . .’’As our Supreme Court explained in Huerta, this statutory provision represented an intention to remove presumptive sentences from appellate review, even when appeals were based on a claim of prejudice, corrupt motive, or an error involving a constitutional right. 291 Kan. at 835-37, 838. Thus, the court instructed in Huerta that a presumptive sentence could not be appealed based on a claim that an individual presumptive sentence was unconstitutional for some reason. 291 Kan. 831, Syl. ¶ 3. And the court in Huerta specifically disapproved our decision in Dillon, which had considered an appeal on the basis that the district judge had refused to consider the constitutionality of the sentence. Huerta, 291 Kan. at 839-41.
But Warren is not raising a constitutional due-process argument or an argument that his presumptive sentence was unconstitutionally severe based on his facts. Warren instead argues that his appeal may be heard because the district court misinterpreted its sentencing options, the same argument our court ruled upon in Cisneros.
In Cisneros, the defendant initially received probation, but the probation was revoked and the defendant was sent to prison to serve his original 155-month sentence. At the probation-revocation hearing, the defendant asked the district court to enter a lesser sentence, but the judge said that was “not within my power here.” 42 Kan. App. 2d at 377. In fact, however, K.S.A. 22-3716(b) allows the district court to order the defendant either to serve the original sentence “or any lesser sentence” when probation is revoked. When Cisneros appealed, the State argued that our court lacked jurisdiction to consider the appeal because Cisneros had received a presumptive sentence. But our court considered the appeal a question of statutory interpretation rather than a review of a presumptive sentence: Our court reversed, explaining that the district court had misunderstood its statutoiy authority. The case was remanded for re-sentencing, but the district court was free to enter whatever sentence it found appropriate, though it would understand on remand that the original sentence was not its only option.
“Cisneros is not appealing the term or length of his sentence so much as he is appealing the district court’s judgment that it had no power to reduce his sentence upon revoking his probation. This is a question of law that we have jurisdiction to consider on appeal. If we were to dismiss the appeal for lack of jurisdiction as the State requests, then Cisneros would have no remedy to determine whether the district court properly applied K.S.A. 22-3716(b) in his case.” 42 Kan. App. 2d at 379.
If Cisneros is still good law, then Warren is entitled to be heard on appeal because he presents essentially the same argument that we addressed there. In Cisneros, the district judge said, “I don’t have the power to lower [the sentence]. That is not within my power here.” 42 Kan. App. 2d at 377. But under the applicable statute, K.S.A. 22-3716(b), the district judge in Cisneros did have the power to give Cisneros a lesser sentence upon revoking his probation. In Warren’s case, the district judge also held that he did not have the power to reduce Warren’s sentence. Warren’s judge identified the question of whether the small amount of drugs can be “a legally sufficient reason” to depart, but concluded, “I do not believe that meets the statutoiy factor, or factors[,] and [is] legally sufficient to constitute a substantial and compelling reason for departure, the amount of drugs involved.” And in Warren’s case, as in Cisneros, Warren makes the argument that under the applicable statute, K.S.A. 21-4716(c)(l)(E), the judge in Warren’s case did have the power to give him a lesser sentence.
In both Warren’s case and in Cisneros, then, the appeal was based on the claim that the district court misinterpreted a statute and thus unduly limited its own statutory authority when sentencing the defendant. We see no meaningful distinction between the two cases, so we must now determine whether Cisneros is still good law given the Kansas Supreme Court’s decision in Huerta. We must determine the jurisdictional issue before addressing the merits of Warren’s claim. Huerta, 291 Kan. at 840-41.
The rulings made in Huerta do not undermine the continued validity of Cisneros. In Huerta, the court decided three issues: (1) the lack of appellate jurisdiction to consider an appeal of a presumptive sentence under K.S.A. 21-4721(c)(l) does not violate equal-protection rights; (2) the defendant had abandoned any due-process challenge to K.S.A. 21-4721(c)(l); and (3) a criminal defendant’s claim that the sentence amounts to some constitutional violation does not give the defendant the right to appeal a presumptive sentence. 291 Kan. 831, Syl. ¶¶ 1-3. None of these rulings deals with the question that was presented in Cisneros, which was whether an appellate court may set aside a sentence and order reconsideration of the sentence by the district court when that court has explicitly misinterpreted its own statutory sentencing authority.
But we must also consider some comments made about Cisneros in one section of the Huerta opinion. In that section, the Huerta court was considering — and disapproving — our court’s opinion in the Dillon case. In Dillon, our court had ruled that when a defendant asks for a departure sentence on constitutional grounds and the district court explicitly refuses to consider that argument, the sentence may be set aside and the case sent back for resentencing because the court had denied due process to the defendant. 44 Kan. App. 2d 1138, Syl. ¶ 2. But our Supreme Court disagreed and announced its disapproval of Dillon in Huerta, where it also said that the Dillon court had been wrong to rely upon Cisneros as part of the rationale for tire Dillon ruling:
“Dillon also relied on a prior Court of Appeals decision, State v. Cisneros, 42 Kan. App. 2d 376, 212 P.3d 246 (2009), which it read to grant appellate jurisdiction to review a presumptive sentence when the district judge had misunderstood the limits of his or her discretion in sentencing after a revocation of probation. Dillon, 44 Kan. App. 2d at 1145. In Cisneros, the defendant appealed because the district judge believed he had no power to reduce Cisneros’ sentence upon a probation revocation, despite language to the contraiy in K.S.A. 22-3716(b). The Court of Appeals determined that this was a question of law over which it had jurisdiction. 42 Kan. App. 2d at 379. The court went on to state that, if it dismissed Cisneros’ appeal for lack of jurisdiction under K.S.A. 21-4721(c)(l), ‘then Cisneros would have no remedy to determine whether the district court properly applied K.S.A. 22-3716(b) in his case.’ 42 Kan. App. 2d at 379. Cisneros is plainly factually and procedurally distinct from the situation before the Court of Appeals in Dillon, and Dillons reliance on Cisneros was misplaced.” Huerta, 291 Kan. at 840.
To be sure, our Supreme Court indicated that our court had been wrong to rely upon the Cisneros holding as a basis for our conclusion in Dillon fhat a presumptive sentence could sometimes be appealed if the district court had refused to consider a potentially viable constitutional issue at sentencing. But the Dillon case pre sented a different question than presented in Cisneros, and the Huerta court does not make any criticism of the Cisneros holding. Indeed, another panel of our court concluded that “[t]he Huerta court, by specifically distinguishing Cisneros from Dillon, tacitly approved the jurisdictional exception set forth in Cisneros.” State v. Monroe, No. 104,822, 2011 WL 6942941, at *3 (Kan. App. 2011) (unpublished opinion).
We conclude that the rationale of Cisneros is solid and that its holding has not been undercut by the Huerta decision. In both Huerta and Dillon, the defendants sought appellate review based on a constitutional claim, while in both Cisneros and in Warren’s case the defendants seek review only regarding a misinterpretation allegedly made by the district court of its own authority under the sentencing statutes. We therefore have jurisdiction to consider the limited argument made here by Warren — that the district court wrongly interpreted its statutory sentencing authority and therefore refused to consider matters before it that were potentially relevant to the sentence.
II. The District Court Could Have Given Warren a Downward-Departure Sentence But Wrongly Refused to Consider That Possibility Because It Misinterpreted a Sentencing Statute.
We turn then to the merits of the appeal — whether the district court had statutory authority to consider Warren’s request for a lesser sentence. The sentencing guidelines called for one of three sentences: 122 months (the mitigated sentence), 130 months (the standard sentence), or 136 months (the aggravated sentence). The district court chose the mitigated number, 122 months.
Warren had asked for a downward-durational-departure sentence of 40 months based on his claim that the degree of harm was less than typical because the amount of drugs involved was so small. K.S.A. 21-4716(c)(l)(E) allows a departure sentence when “[t]he degree of harm . . . attributed to the current crime of conviction was significantly less than typical for such an offense.” But the district court held that it had no authority to depart based on the amount of drugs because the statute prohibits any contraband in a prison and no specific amount threshold is found in the statute.
The question we must address is whether a lesser, or departure, sentence can ever be granted based on the small quantity of drugs involved when sentencing a defendant for bringing contraband into a prison in violation of K.S.A. 21-3826. We review that question independently, without any required deference to the district court, because the question is one of statutoiy interpretation. See State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). So the question before us is: Can the small quantity of drugs in a prison-contraband case constitute a substantial and compelling reason to depart under K.S.A. 21-4716(c)(l)(E) because the degree of harm is significantly less than typical for such an offense?
The State argues that because the law bans all contraband, no matter the quantity, that having a small quantity is just as bad as a large one — all contraband is inherently dangerous. It’s certainly true that tire law forbids any contraband in prison, regardless of amount. But we see no reason that the quantity of drugs may not be taken into account as a sentencing-departure factor, just as it may be in nonprison cases involving drug possession. See State v. Davis, 262 Kan. 711, 941 P.2d 946 (1997) (finding that district court could enter upward departure sentence in part based on large quantity of drugs involved).
We note too that our court has previously held that a downwarddurational-departure sentence could be given based on the small quantity of drugs involved in a prison-contraband case. In an unpublished decision in another case from Reno County, our court affirmed a downward-departure sentence of 20 months, rather than the guidelines’ 40- to 46-month range, when the inmate possessed only two small marijuana cigarettes and the district court had found that a substantial and compelling reason to depart. State v. Myers, No. 90,525, 2004 WL 1176634 (Kan. App. 2004) (unpublished opinion). In that opinion, our court provided a cogent rejection of the State’s argument that quantity should not be an available departure factor since the possession of any contraband violates the law:
“The issue is not what is required for a conviction, but what is typical in such a conviction. Myers was convicted under K.S.A. 2003 Supp. 21-3826, which defines traffic in contraband in a correctional institution. It covers not only posses sion, but other activities such as bringing contraband into tire institution, sending contraband from the institution, and distributing contraband within the institution. Apparently Myers was not a dealer but an end-user at the end of the distribution chain. Myers’ possession of two small marijuana cigarettes was a valid departure factor under K.S.A. 2003 Supp. 21-4716(c)(l)(E).” 2004 WL 1176634, at *2.
We conclude that the possession of only a small quantity of drugs constitutes a valid factor upon which a departure sentence may be entered on a prison-contraband conviction.
We express no opinion on whether the district court actually should grant a departure sentence to Warren. That is a discretionary call to be made by the district court, not the appellate court. See Spencer, 291 Kan. 796, Syl. ¶ 6. But the district court in Warren’s case wrongly concluded that it could not even consider this issue. We therefore remand for resentencing so that the district court may properly exercise the discretion given to it by statute.
III. There Was No Violation of Warrens Speedy-Trial Rights.
Warren’s final argument is that his speedy-trial rights were violated because he was not brought to trial within the time limits set by the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq. That act provides speedy-trial rights to prisoners being held in Kansas. Under the act, once a prisoner against whom a Kansas criminal charge is pending asks for final disposition of the charge, the State must bring the case to trial within 180 days, subject to certain exceptions. See K.S.A. 22-4301; K.S.A. 22-4303; State v. Watson, 39 Kan. App. 2d 923, Syl. ¶¶ 2, 4, 186 P.3d 812, rev. denied 287 Kan. 769 (2008).
The district court may grant continuances and extend the 180-day deadline “for good cause shown in open court,” so long as the prisoner or his or her attorney is present and the prisoner’s attorney has received notice and has an opportunity to be heard. K.S.A. 22-3403. Continuances granted either to the defendant or to the State under these circumstances will extend the 180-day deadline. Watson, 39 Kan. App. 2d 923, Syl. ¶ 4.
Only a few facts need to be noted. Warren filed a request for final disposition of the charges against him on May 18, 2009. After preliminary hearing and arraignment, the court set the case for jury trial on October 27, 2009, which was 162 days after Warren’s request for final disposition and thus within the 180-day deadline.
But less than 3 weeks before trial, Warren’s attorney filed a motion to withdraw, stating that there had been a breakdown in communication between attorney and client and that Warren wanted a new attorney. Warren and his attorney appeared before the court at a hearing held October 23, 2009, and Warren confirmed that he couldn’t communicate with his present attorney and wanted a new one appointed.
The State said that it would have no objection to Warren’s request for new counsel if he waived his speedy-trial rights; the prosecutor said that the case needed to be tried by November 1. (The actual deadline appears to have been November 14, which was 180 days after May 18.) The district court then began to make an inquiry of Warren about a possible waiver, but Warren interrupted and said he was waiving his speedy-trial rights:
“THE COURT: Well, but Waddell, you — you’re going to waive your right—
“THE DEFENDANT: Yes, I’m waiving the rights to speedy trial.”
The court then granted Warren’s attorney’s motion to withdraw and appointed a new attorney, who was present in the courtroom, to represent Warren. That attorney asked that the trial be reset on the court’s calendar “as soon as possible,” and Warren said — in response to the court’s inquiry — that doing so would be acceptable to him. The court ultimately reset the jury trial for January 26, 2010 (though, after the potential jurors had reported to court that morning, Warren waived his jury-trial right and proceeded with a trial to the court).
Warren argues on appeal that the waiver of his speedy-trial rights was made hastily and that he didn’t fully understand his rights. But the 180-day time limit under the Uniform Mandatory Disposition of Detainers Act is extended whenever a continuance request is granted in open court with notice to the prisoner’s attorney and an opportunity to be heard. See Watson, 39 Kan. App. 2d 923, Syl. ¶ 4. Here, the first trial setting was continued because of the defendant’s motion to change attorneys, and the continuance was granted in open court at a hearing set specifically to consider de fense counsel’s withdrawal motion, and all parties had the chance to be heard. We find no violation of Warren’s speedy-trial rights.
The sentence entered by the district court is vacated, and the case is remanded with directions to resentence the defendant in accordance with this opinion. The judgment of the district court is otherwise affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a conviction of manslaughter in the first degree.
The appellant complains of no trial errors but rather bases his charge of improper conviction on a claim of double jeopardy. Only the limited facts necessary to a determination of that issue and related questions will be presented.
The defendant, while engaged in a drunken brawl, attempted to shoot his wife but instead shot a police officer killing him almost instantly. His first prosecution for murder in the first degree resulted in a hung jury. After the jury had deliberated for a long number of hours the trial judge inquired whether they had reached an agreement. They advised the judge that they had not. He then asked whether they would be able to reach a verdict and was answered in the negative by the foreman. He then asked the foreman whether he could see any further point in continuing their deliberations and the foreman answered, “No, sir.” He then inquired of the jury members if any member of the jury thought that they would be able to reach a verdict and no member responded affirmatively. The court then discharged the jury. Thereafter, the defendant was returned to the jail to await a new trial. Before the second trial defendant presented his plea in bar and motion to amend or strike the journal entry. The motion and plea were overruled.
The second trial was had and defendant was convicted of manslaughter in the first degree. The defendant, at the time fqr sentencing, abandoned his new trial motion and when the court inquired if there was any reason why defendant should not be sentenced, stated there was none. There being no legal cause why sentence should not be pronounced the court sentenced the defendant.
Up to this point defendant had been represented by counsel of his own choosing.
Not quite six months later defendant pro se filed his notice of appeal, motion for the record and appointment of counsel which were provided for him. Thereafter, the motion for the production of the transcript of the trial which resulted in a hung jury was presented and overruled. When the matter was presented, and prior to such presentation, the defendant was told that the state would order and pay for any part of the transcript which was deemed relevant but maintained that the transcript of the trial resulting in the hung jury was not relevant to the appeal in the present proceedings.
The notice of appeal states that the defendant appeals from the judgment, sentence and order of commitment rendered in the second trial.
We must admit that it is not without some difficulty that we determine just what issue the defendant is raising on appeal. We are informed in appellant’s brief and were again admonished on oral argument that under no circumstances does the appellant want to face the hazard of a new trial. The appellant therefore raises no trial errors. Perhaps the issue presented by appellant’s seven questions set out in his brief may be summarized as follows:
Where an indigent defendant desires to appeal from an order denying a plea in abatement based on the manner in which the trial court discharged a hung jury, is he, following a conviction on a second trial, entitled to a free transcript of the entire trial proceedings of both the first and second trial?
The appellant argues:
“The possible error of double jeopardy is clear from the pleadings of record, so what is appellant’s counsel’s duty? Is it the duty of appellant’s counsel to appeal only on the portion of the record that the prosecution wants to make available? Are other errors concealed in the yet unproduced transcript? How can appellant’s counsel designate what parts of the transcript are necessary for this appeal when he knows not what it contains?
“The duty of court appointed appellate counsel is that of an advocate on behalf of the appellant and to provide the appellant with adequate representation. To provide that adequate representation necessitates a complete transcript as a basis for evaluation for the case. Hardy v. United States, 375 U. S. 277, 281, 282, 11 L. ed. 2d 331, 334, 335, 84 S. Ct. 424.”
We agree with what was said in Hardy v. United States, 375 U. S. 277, 279, 11 L. ed. 2d 331, 84 S. Ct. 424:
“A court-appointed counsel who represents the indigent on appeal gets at public expense, as a minimum, the transcript which is relevant to the points of error assigned. Coppedge v. United States, supra, at 446; Ingram v. United States, supra. . . .”
However, the trial proceedings in the first trial which resulted in a hung jury become a nullity when the jury is discharged. They are not subject to review by an appellate court. Neither are they matters for consideration in the second trial. The second trial is tried de novo.
The only occasion when the proceedings in the first trial would be material would be in connection with such matters as double jeopardy. Then the trial proceedings such as the testimony of the witnesses would have no bearing. The only part of the transcript which would be material would be the proceedings which took place when the jury was discharged. These are made available and are as follows:
“The Court: Mr. Foreman, has the Jury reached a verdict?
“Jury Foreman (Mr. Albert Crockett): No, Your Honor.
“The Court: Do you think you will ever reach one?
“Mr. Crockett: No, Your Honor.
“The Court: Any further point in continuing your deliberations?
“Mr. Crockett: No, sir.
“The Court: Does any member of the Jury think you will ever reach a verdict in this case?
“No Response.
“The Court: Very well, the Jury is discharged. Thank you very much for your services.”
The Appearance Docket in the office of the Clerk of the District Court bears the following notation:
“Jury deadlocked. Deft, to return to Sedg. Co. Jail pending another trial.
“2-10-63 Hung Jury—discharged 5:10 p. m., 2-18-63.”
The journal entry reads in part:
“Thereafter, and on the 18th day of February, 1963, all parties appearing as aforesaid, the Foreman of the jury announced that the jury was deadlocked and that it was not possible for them to arrive at a verdict. Whereupon, the court made a judicial determination that said jury was hopelessly deadlocked; that further deliberations by the jury should be excused.
“Whereupon, the Court in the presence of the defendant and his attorney, did excuse the jury from further deliberations and ordered the Sheriff of Sedgwick County, Kansas, to return the defendant to the Sedgwick County Jail until such time as this cause could be set down for another trial.”
The state should not be required to subsidize frivolous requests for indigent appellants.
We also believe the plea of former jeopardy was properly overruled. A defendant has not been in jeopardy where his first trial results in a mistrial because the jury cannot agree. (Struble v. Gnadt, 164 Kan. 587, 191 P. 2d 179.)
K. S. A. 60-248 (f) provides:
“The jury may be discharged by the court . . . after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.”
The above section is made applicable to trial of criminal cases by K. S. A. 62-1412.
The length of time a jury should be kept together and the probability of an agreement must be determined by the trial court from the facts and circumstances of the particular case. The existence of inability to agree nullifies any seeming jeopardy, and when the trial court concurs in and affirms the jury’s conclusion that it is unable to agree the finding is absolute and conclusive in the absence of abuse of discretion. (State v. Allen, 59 Kan. 758, 54 Pac. 1060; State v. Hager, 61 Kan. 504, 59 Pac. 1080.)
The appellant suggests that the duty of a court appointed counsel is that of an advocate on behalf of appellant, not that of the state, and that a complete transcript of all proceedings should be demanded.
We agree with appellant’s suggestion as to counsel. However, court appointed counsel are not obligated to present frivolous questions to the court or request copies of transcripts which can have no bearing on the case. If court appointed counsel finds, after diligent investigation, that there is no merit to his clients contentions he is not obligated to stultify his legal integrity in an effort to support them. The Hardy case, supra, quoted with approval the rule announced in Ellis v. United States, 356 U. S. 674, 675, 2 L. ed. 2d 1060, 78 S. Ct. 974, where it was stated:
“. . . If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel’s evaluation of the case, then leave to withdraw may be allowed and leave to appeal [in forma pauperis] may be denied.”
We find no merit in appellant’s contentions.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action brought by Roe Village, Inc., to test the reasonableness of an order of the Board of County Commissioners of Wyandotte County in granting the appellee, D. L. Sandifer, a change of zoning.
Issues were joined and trial was by the district court on June 30, 1964, and taken under advisement. On July 6, 1964, the district court filed a detailed memorandum opinion upholding the order of the Board of County Commissioners. The last paragraph of the memorandum opinion reads:
“Counsel should prepare a Journal Entry of Judgment in line with the views here expressed denying plaintiff the relief it seeks. The judgment will not be effective until the date the Journal is signed by the Court and. filed.’” (Emphasis supplied.)
On July 21, 1964, the appellant served and filed a notice of appeal “from the decision of the District Court entered on July 6, 1964, in this action, including but not limited to the finding and decision of the Court dated July 6,1964 . . . and all other findings and judgments entered on said date.”
Counsel for the parties were unable to agree on a journal entry, and each presented suggested journal entiles to the court. Appellee-Sandifer filed a motion on August 11, 1964, asking the court to approve his journal entry. On September 5, 1964, the district court settled the matter by approving and signing the journal entry submitted by the appellant. The journal entry was filed with the clerk on that same day. No notice of appeal was served or filed by the appellant after the journal entry had been approved and signed by the court and filed with the clerk.
At the outset we are confronted with appellees’ motion to dismiss the appeal, which was denied by this court with leave to renew when the case was heard on its merits. The appellees assert the appeal was prematurely filed for the reason that oil July 21, 1964, there was no judgment of record from which an appeal could.be perfected.
Appellant relies upon the district court’s memorandum opinion filed July 6, 1964, as a final judgment, reviewable as such by this court.
A judgment is the final determination of the rights of the parties in an action. (K. S. A. 60-254 [a].) It has long been settled that an appeal taken from a jury verdict or decision of the court before judgment has been rendered is premature and will be dismissed. (Upton v. Pendry, 110 Kan. 191, 203 Pac. 300; Skaggs v. Callabresi, 145 Kan. 739, 67 P. 2d 566; Painter v. Monumental Life Ins. Co., 158 Kan. 585, 149 P. 2d 626.) Whether a final judgment has been rendered in a given situation depends primarily upon the intention of the court, and upon the governing statutory provisions and rules.
The law in this jurisdiction with respect to the rendition of judgments and when they become effective was substantially changed by the adoption of the new code of civil procedure, effective January 1, 1964. The manner and method of entering a final judgment after a trial or hearing on the merits is presently governed by K. S. A. 60-258, which reads, in part:
“(a) Entry of judgment. Unless the judge otherwise directs and subject to the provisions of section 60-254 (b), judgment upon the verdict of a jury shall be entered forthwith. The judge shall direct the appropriate judgment to be entered upon a special verdict or upon a general verdict accompanied by answers to interrogatories returned by a jury pursuant to section 60-249. When the judge directs that a party recover only money or costs or that all relief be denied, the clerk shall enter judgment forthwith upon receipt by him of the direction; but when the court directs entry of judgment for other relief, the judge shall promptly settle or approve the form of the judgment and direct that it be entered by the clerk.
“(b) What constitutes entry of judgment. If judgment is to be entered on the verdict of a jury, or by direction of the judge forthwith, the clerk shall make a notation of the judgment on the appearance docket as provided by section 20-2601, and such notation shall constitute the entry of judgment, and no journal entry or other document shall be required to render the judgment effective. If the judge directs that the form of the judgment is to be settled by a journal entry or other document, it shall be prepared in accordance with the directions of the judge who shall then sign the same and cause it to be filed with the clerk. Such filing shall constitute the entry of the judgment, and it shall not be effective before such filing. . . .” (Emphasis supplied.)
Generally speaking, the prevailing practice heretofore has been to settle all forms of judgment entry by a formal journal prepared and agreed upon as to form by counsel of record, and approved and signed by the district court. The committee which drafted the code of civil procedure and the legislature which enacted it intended to eliminate the uncertainty which heretofore prevailed in the practice in Kansas as to when judgment became effective and to provide the moment when judgment was rendered and the event which constitutes entry of judgment. The significance of subsection (b) cannot be emphasized too much in that it makes the entry of judgment of controlling importance.
Judge Gard, in his book entitled “Kansas Code of Civil Procedure Annotated,” has this to say with respect to the effect of subsection (b) and the change it made in Kansas law:
“This subsection changes the Kansas practice with respect to the event which makes a judgment effective. A judgment following a general verdict or a judgment directed by the court under other circumstances, where the judge does not direct that the form of the judgment is to be settled by a journal entry, becomes a judgment upon entry thereof by the clerk in the ‘appearance docket.’ The manner of making the entry is prescribed by section 60-2601. Entry in the journal is no longer required, unless the judgment is to be formally journalized.
“More important still is the provision which makes a judgment which is to be formally journalized effective only upon the filing of the journal entry and not before. ■ This is contrary to the decision in Gates v. Gates, 160 K. 428, 163 P. 2d 395, and similar cases, which left the effectiveness of the judgment to be determined by possible uncertainty where the records as to what was actually done were scanty and inadequate.
“A common practice which has prevailed in the past among Kansas trial judges becomes more important under this rule. That is that where the judge is ready to render his decision he will make the nature of his decision and his findings known in advance, by a memorandum decision or announcement from the bench, or perhaps in chambers with counsel on both sides present, and fix a time when the journal entry is to be presented for signature and filing so as to make the judgment effective. In any event the journal entry now takes on a significance which it never has had before, except in the case of judgments which are entered on the appearance docket by the clerk as a matter of course.” (p. 267.)
Likewise, Vernons Code of Civil Procedure, Vol. 3, by Fowks, Harvey and Thomas, commenting upon K. S. A. 60-258, has this to say with respect to what constitutes entry of judgment:
“Subdivision (b) further provides if the judge directs that the form of the judgment is to b.e settled by a journal entry or other document, it shall be prepared in accordance with the direction of the judge, who then must sign the judgment and cause it to be filed with the clerk. The next sentence proves the point that until such a judgment is actually filed with the clerk there is no judgment recognized, and it ‘shall not be effective before such filing.’ This is so because it is not the judge’s signature, nor his direction that the form of judgment shall be settled by journal entry or other document, that constitutes an effective judgment. It is the filing with the clerk that constitutes an effective judgment, and constitutes the entry of judgment as well, for purposes of post-judgment action.” (pp. 483, 484.)
K. S. A. 60-2103, providing when and how appeals to the supreme court shall be taken, in pertinent part states that when an appeal is permitted by law from a district court to the supreme court, the time within which an appeal may be taken shall be 30 days from the entry of the judgment, as provided by Sec. 60-258.
In the case at bar it is obvious the district court neither intended nor regarded its memorandum opinion as a final judgment. The court specifically ordered that the judgment was not to become effective until it was signed and filed with the clerk. The record discloses the journal entry of judgment was not filed until September 5, 1964, some 46 days after this appeal was taken. Consequently, since the appeal was filed prior to the entry of final judgment (K. S. A. 60-258 [&]), there was no judgment from which to appeal, and we are compelled to hold that the attempted appeal was premature, and must be dismissed. An appeal from a judgment not yet rendered presents nothing for judicial review. See Martin v. Staples, 164 F. 2d 106; St. Louis Amusement Co. v. Paramount Film Distributing Corp., 156 F. 2d 400, and Uhl v. Dalton, 151 F. 2d. 502, involving a similar situation.
Since the attempted appeal was filed before the district court’s judgment was rendered and became effective, and since no notice of appeal was timely filed thereafter, this court has no jurisdiction of the appeal and it must, therefore, be dismissed.
It is so ordered.
Schroeder and Fontron, JJ., dissent. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order and judgment of the district court of Barber County denying appellant’s motion under K. S. A. 60-1507 to vacate and set aside a prior judgment and sentence of that court in a criminal action.
The facts required to dispose of the appeal will be stated as briefly as the state of the record permits.
On May 12, 1960, appellant was taken before a proper magistrate in Barber County under a complaint and warrant charging him with the crime of forgery in the second degree for a preliminary examination. There, without counsel, he announced in open court that he desired to and did waive such preliminary examination. Thereupon appellant was bound over to the district court for trial.
Following the action just related an information was filed in the district court charging appellant with having committed the crime in question. Prior to his arraignment in district court on May 24, 1960, the court inquired of appellant if he had a lawyer or needed one for his defense. Appellant answered that he did not have counsel or funds to employ one and asked that the court appoint an attorney to represent him. The court then appointed J. Raymond Eggleston, an able and well-qualified attorney of Medicine Lodge, to represent appellant in the case. Latter, and on the same day, his court-appointed counsel being present, the court inquired of appellant if he had had an opportunity to confer with his attorney and if he was ready to be arraigned. Having received an affirmative answer to both questions the court then asked how the appellant desired to plead. Thereupon appellant, through his court-appointed counsel, waived formal arraignment and entered a plea of guilty to the crime of forgery as charged in the information. The court then inquired of appellant and his counsel if there was any legal reason why sentence should not be pronounced and, when negative answers were made to this inquiry, proceeded to sentence appellant to the Kansas State Penitentiary for the period of time prescribed by statute for commission of the crime to which he had entered his plea of guilty.
More than four years after he had been sentenced to the penitentiary on his plea of guilty to forgery in the second degree (G. S. 1949, 21-608 [now K. S. A. 21-608]) appellant filed a letter in the district court of Rarber County wherein he asked in substance that such letter be treated as a motion under 60-1507, supra, to vacate and set aside his judgment and sentence on the grounds of illegal incarceration in that (1) he was not represented by counsel at his arraignment; (2) he was not advised of Supreme Court Rule No. 56 pertaining to appeals; and (3) he was not represented by counsel at his preliminary examination.
The district court granted appellant’s request as to the import to be given the foregoing motion and, on November 6,1964, conducted a hearing thereon after which it overruled such motion holding in substance that as to (1), supra, the record affirmatively disclosed appellant’s claim with respect thereto was false and untrue; that as to (2), supra, the record was devoid of any evidence that appellant made any attempt to appeal from his conviction on his plea of guilty, or that he had any desire to appeal, and that the time in which he had a statutory right to appeal from his judgment and sentence had long since expired; and that as to (3), supra, the court found that the question therein raised had been decided adversely to appellant’s contention in State v. Daegele, 193 Kan. 314, 393 P. 2d 978, certiorari denied, 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686, and the decisions therein cited. As an additional ground for overruling the motion the court stated and held it had carefully examined such motion, as well as all files and records in the action resulting in appellant’s conviction and sentence, and found that the motion and the files and records in the initial action conclusively established that appellant was not entitled to any of the relief sought in his motion.
Thereafter, and on November 16, 1964, appellant filed a handwritten notice of appeal in the district court of his intention to appeal from that court’s decision of November 6, 1964, along with an application asking that the court grant him leave to proceed in forma pauperis, furnish him with a free transcript, and appoint an attorney to represent him in the appeal.
On November 24, 1964, the district court found that the requirements of Rules 6 and 9 of this court would, because of indigence of the appellant, amount to a denial of an appellate review and that it should authorize appellant to perfect an appeal in forma pauperis. Thereupon it ordered that appellant be permitted to appeal in that manner and directed that he be furnished, free of cost, with two legible typewritten copies of the entire record in the instant case and in the criminal action. At the same time it found that the instant appeal would present no substantial question of law or triable issue of fact and that appellant’s request for appointment of counsel to represent him in the appeal should be denied.
Later, and on February 8, 1965, the court, on its own motion, found that this court’s Rule 121 was in force and effect on November 24, 1964, that such rule required the appointment of counsel to assist the appellant in his appeal and that the court was in error in not acceding to his request to appoint an attorney to represent him in such appeal. Thereupon the court appointed O. M. Wheat, a capable and well-qualified attorney of Medicine Lodge, to represent him in this court in the instant appeal. Mr. Wheat fulfilled this obligation by filing a proper record and brief in appellant’s behalf and by orally arguing the cause on the date his appeal was heard by this court on its merits.
In concluding the foregoing factual statement it should perhaps be stated the record in this case does not show, that appellant ever requested that counsel be appointed -to represent him at his preliminary examination, that no claim is made that at his trial evidence was introduced with respect to anything that happened at his preliminary hearing, and that in fact such record is devoid of any showing that his rights were in any way prejudiced hy the fact he was not represented by counsel at that hearing.
Both in his brief and on oral argument of this case on its merits appellant’s counsel, with commendable candor, concedes that the all-decisive question presented for appellate review is whether an indigent defendant has a constitutional right to have counsel appointed by the court to represent him at his preliminary examination. With equal candor counsel admits that, procedurally speaking, the judgment and sentence in the instant case are regular and in conformity with the present laws of Kansas. He likewise concedes this court has universally held, that since a preliminary hearing is not a trial in the sense that a defendant may be found guilty and he is bound over for trial only where the state establishes that an offense has been committed and there is probable cause for charging him with its commission—otherwise he is to be discharged—an indigent defendant has no constitutional right to have counsel appointed to represent him at his preliminary examination.
Having made the concessions, previously indicated, appellant contends that, notwithstanding what the law of this state may have been in the past, we should now reappraise this entire area of Kansas law and overrule our existing decisions as to the right of an indigent defendant to have court-appointed counsel at his preliminary hearing. The difficulty with all contentions raised by appellant on this point lies in the fact that this court, in the face of a like contention and under similar facts and circumstances, has previously, and on numerous occasions, determined all questions raised by him with respect thereto adversely to his position. See, e. g., Bergin v. State, 194 Kan. 656, 658, 659, 400 P. 2d 978.
See, also, Portis v. State, 195 Kan. 313, 403 P. 2d 959, (decided July 10, 1965), where it is held:
“In this jurisdiction the purpose of a prehminary examination before a magistrate for one charged with a felony is to determine whether an offense has been committed and whether there is probable cause for charging a defendant with the commission thereof. The proceeding is not a trial in the sense that one may be found ‘guilty.’ A defendant is bound over for trial only where the state establishes that an ofFense has been committed and that there is probable cause for charging him with its commission—otherwise he is to be discharged. (K.S. A. 62-618.)
“Under the facts, conditions and circumstances set forth at length in the opinion, and following, the numerous decisions therein cited, it is held that an indigent defendant does not have a constitutional right to have an examining magistrate furnish him with counsel for his preliminary hearing.” (Syl. f ¶ 1, 2.)
And in the opinion, where numerous decisions are cited, said:
“This court, in a long and unbroken line of decisions, has fully demonstrated that in view of the existing law of this state an accused has no constitutional right to be furnished court-appointed counsel at his preliminary hearing. Nothing would be gained and it would only encumber our reports to here set forth at length what is said and held in our numerous decisions adhering to the view just stated, under facts, conditions and circumstances similar to those here involved. For a few of our more recent decisions, the opinions of which are incorporated herein by reference and made a part of this opinion, see State v. Crowe, 190 Kan. 658, 378 P. 2d 89; State v. Robertson, 190 Kan. 771, 378 P. 2d 37; In re Mortimer, 192 Kan. 164, 386 P. 2d 261; State v. Naillieux, 192 Kan. 809, 391 P. 2d 140, certiorari denied, 379 U. S. 864, 13 L. Ed. 2d 67, 85 S. Ct. 131; State v. Daegele, 193 Kan. 314, 393 P. 2d 978, certiorari denied, 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686; State v. Cox, 193 Kan. 571, 396 P. 2d 326, certiorari denied, 380 U. S. 982, 14 L. Ed. 2d 276, 85 S. Ct. 1350; State v. Jordan, 193 Kan. 664, 666, 396 P. 2d 342, certiorari denied, 380 U. S. 920, 13 L. Ed. 2d 805, 85 S. Ct. 917; White v. Crouse, 193 Kan. 674, 679, 396 P. 2d 333, certiorari denied, 381 U. S. 954, 14 L. Ed. 2d 727, 85 S. Ct. 1814; State v. Young, 194 Kan. 242, 398 P. 2d 584; State v. Richardson, 194 Kan. 471, 399 P. 2d 799; State v. Baier, 194 Kan. 517, 399 P. 2d 559; State v. Blacksmith, 194 Kan. 643, 400 P. 2d 743; Bergin v. State, 194 Kan. 656, 400 P. 2d 978; State v. Wharton, 194 Kan. 694, 401 P. 2d 906; Tarr v. State, 194 Kan. 798, 402 P. 2d 309; Bowers v. State, 194 Kan. 820, 402 P. 2d 328.” (p. 316.)
For more recent decisions of like import, not cited in the Portis case, see State v. Talbert, 195 Kan. 149, 402 P. 2d 810, certiorari denied, 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143; State v. Atkins, 195 Kan. 182, 403 P. 2d 962; Zumalt v. State, 195 Kan. 520, 407 P. 2d 234, and Blacksmith v. State, 195 Kan. 523, 407 P. 2d 486.
Based on the undisputed facts, conditions and circumstances set forth at length in this opinion, and on what is said and held in the heretofore cited decisions, we have no difficulty in concluding that the trial court did not err in denying appellant’s 60-1507, supra, motion-to vacate and set aside his prior judgment and sentence.
In conclusion it should be stated that a further ground for affirmance of the district court’s action in denying the appellant’s motion to vacate and set aside his prior judgment and sentence is to be found in our decisions. The established rule of this jurisdiction, to which we adhere, is that any claimed irregularities pertaining to a preliminary examination and/or preliminary hearing are deemed to be waived where—as here—it appears the defendant in a criminal action, while represented by capable counsel, has entered a volun tary plea of guilty in the district court. See, e. g., Foster v. Hudspeth, 170 Kan. 338 (Syl. ¶3), 224 P. 2d 987 (petition for writ of certiorari dismissed on motion of petitioner), 340 U. S. 940, 95 L. Ed. 678, 71 S. Ct. 503; State v. Daegele, supra; State v. Jordan, supra; White v. Crouse, supra; Bergin v. State, supra; State v. Blacksmith, supra; State v. Talbert, (Syl. ¶3), supra; Portis v. State, (Syl. ¶ 3) supra; Zumalt v. State, supra, and Blacksmith v. State, supra.
The order and judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Appellant claims error in the failure to give certain requested instructions to the jury which convicted him of the offense of burglary in the third degree under K. S. A. 21-521.
At the trial the prosecution evidence developed the following: Appellant was an employee for a custom combine operator in October, 1964, cutting milo. On October 21, 22, and 23 he drove a combine at the farm of Archie Taylor, Mr. Taylor hauling the grain with a tractor. On those three days appellant ate his noon meal in the Taylor home, about one mile from Mahaska in Washington County. At quitting time the evening of Thursday, October 22, Mr. Taylor asked him to stop by the Taylor home on appellant’s way to town to ask Mrs. Taylor to drive the car to where Taylor was storing milo so he would not have to drive the tractor back. Appellant delivered the message to Mrs. Taylor who thereafter left home to pick up her husband as requested, closing but not locking; the doors to the house. The following Sunday the Taylors noticed that their son’s .22 caliber rifle, customarily kept behind a door in the back hall, was missing. Suspecting appellant, Mr. Taylor caused a search warrant to be issued as a result of which the sheriff of Washington County found the missing rifle in the trunk of appellant’s car. Appellant answered questions and signed a statement written by the county attorney, which included the following:
“That on October 21, 1964,1 went to the home of Archie Taylor and walked in the back door and took the gun from behind the back door. I got in the pickup and drove back to Haddam where I put the gun in my own car. The gun was a Remington bolt action Rifle, with peep sight and carrying sling. When I approached the door of the Archie Taylor house the door and screen were both closed and I opened them both to get into the house.”
Appellant testified as a witness in his own behalf substantially as follows: That on the three days he was cutting milo for Mr. Taylor he ate his noon meals in the Taylor home; that about quitting time he delivered Mr. Taylor’s message to Mrs. Taylor that she was to pick him up at the state line; immediately after delivering this message at the Taylor house he drove a pickup to Mahuska for a bottle of pop; that he had a pair of goggles which he wore to keep the dust out of his eyes; he had evidently misplaced the goggles and had worked without them that afternoon and had two sore eyes; that he went back to the Taylor place thinking- they might have fallen out of the pickup when he was at the Taylor place, but they were not there so he went in to the house to see if they were there; he knocked on the door first but did not think there was anyone at home as the car was not there; he went through the screen door on the back porch, pushing in a button to open the door; he looked for the goggles but did not see them where he thought they might be, on top of the egg case where he laid his hat with the goggles; he never did find the goggles. He further testified:
“Q. Well, now, where was this gun?
“A. Behind the door that you come through, come through on the back porch.
“Q. There where you left your hat and coat, in the same room?
“A. It’s in the same room about five feet away.
“Q. Had you noticed that gun before?
“A. I’d seen it sitting there, shotgun sitting there beside it.
“Q. Did you have any intention when you went in there to take that gun when you went in.
“A. No.
“Q. When did you get the idea of taking the gun?
“A. I. don’t know.
“Q. Did you pick it up and look at it?
“A. Yes.
“Q. You didn’t put it back then?
“A. No. Took it.
“Q. Then what did you do with it?
“A. Put it in the pick-up. Started the pick-up and backed out to the road and took off.”
Appellant also testified he did not mention the missing goggles to Mrs. Taylor when he delivered the message to her and did not say anything to anybody about them prior to the trial.
Initially appellant was charged with both burglary and larceny of the rifle in connection with the burglary but at the close of all the testimony the charge of larceny was dismissed upon application of the appellee.
Appellant requested the giving of the following two instructions:
“No--
“The jury are instructed that an essential and indispensable element of the crime of burglary is intent. In order for a defendant charged with burglary to be found guilty, it must be established not only that he entered a dwelling, but that at the very time of entering he had the intention to commit a felony or larceny therein. If he did not have such intention at the time of entering, but entered with a peaceable and lawful intention and for a lawful purpose, and then afterwards, while inside the dwelling, conceived the intention of stealing and- did steal, he would be guilty of -larceny but he would not be guilty of burglary. Therefore, if the defendant in this case did not have the intention of committing a theft when he entered the housé, but formed the intent for the first time after he was inside, he would not be guilty -of burglary, as charged in the first count of the information, and unless you find from the evidence beyond a reasonable doubt that the defendant did have such intent when he entered the house, your verdict on the charge of burglary should be not guilty.
“If the court denies the above requested instructions as framed, then the defendant requests the court to give the instruction in substance.
“No__
“The jury are instructed that if the defendant, Ronnie Dean Jorgenson, entered the house of Archie Taylor with the intention and for the purpose of seeing if his goggles were there where he thought he might have left them, -and did not have any intention at the time of entering the house of stealing anything, and then, after he was in the house, he saw the gun and formed the intention of taking it and did take it and carry it away with him, he would be guilty of larceny, but he would not be guilty of burglary, because an essential element of the crime of burglary is the intention to commit a larceny or other felony at the very time of the entry so if the intent is formed afterwards the entry would not constitute burglary. Therefore, the State in .this case on the charge of burglary must show to your satisfaction from the evidence not only that the defendant, Ronnie Dean Jorgenson entered the house and took the gun, but that he entered with the intention of taking the gun, had that intention in his mind when he entered and did not form it after- wards, and unless the evidence establishes such intention beyond a reasonable doubt, your verdict on the charge of burglary should be not guilty.
“If the court denies the above requested instruction in the language in which it is framed, the defendant requests the court to instruct the jury on the legal principle involved in said instruction, and to give such instruction in substance.”
The court declined to give appellant’s requested instructions on the theory the matter was covered in the instructions given. It gave stock instructions of a general nature, and on the particular point at issue instructed the jury as follows:
“2.
“In order to find defendant guilty of the offenses of third degree burglary as charged against him in the first offense or Count No. 1 of the information, it will be necessary the following facts be established in the minds of the jurors beyond a reasonable doubt, to-wit:
“1. That defendant did enter the home of Archie Taylor;
“2. That he so entered in the daytime;
“3. That the building or home of Archie Taylor contained goods, wares, household goods and other valuable things;
“4. That defendant entered said building with the intent to steal, take and carry away goods, wares, merchandise, household goods and other valuable things;
“3.
“If you find the elements set out in Instruction No. 2 have been proved to your satisfaction beyond a reasonable doubt, your verdict should be guilty of burglary in the third degree as charged in Count No. 1 of the information.
“Conversely, if you find the State has not proved each and every element contained in said Instruction No. 2 to your satisfaction beyond a reasonable doubt, then you shall return a verdict of not guilty as to Count No. 1 of the information.”
The instructions given included a general one as to what might be considered in determining intent.
Appellant was found guilty of burglary in the third degree. Thereafter he moved for a new trial, stating among other things, trial error in the instructions. His motion was overruled and he now urges as error the court’s failure to give his requested instructions or the substance thereof, and the failure to grant a new trial.
Appellant concedes the correctness of the instructions given but in effect says they were inadequate in presenting his theory of the case.
The rule is well established that error cannot be predicated on the refusal to give certain instructions where those which are given cover and include the substance of those which are refused (See cases cited at 2 Hatchers Kansas Digest, rev. ed., Criminal Law, §306; 4 West’s Kansas Digest, Criminal Law, §829).
Thus, the precise point at issue is whether the jury was adequately advised on the issue of the intent of appellant at the time he entered the Taylor home, an intent to commit a larceny therein being an essential element of the offense of burglary. We think the jury was adequately and properly advised as to the requisite intent and as to appellant’s position thereto. Instruction No. 2, subsection 4, above-quoted, plainly and specifically stated that, “In order to find defendant guilty” it would be necessary to find beyond a reasonable doubt that “defendant entered said building with the intent to steal. . . .” (Our emphasis.)
Instruction No. 3 restated the general necessity as to finding of the truth of the various elements constituting the offense of burglary before a verdict of guilty could be returned, and it concluded with the converse of the proposition, specifically directing the jury to return a verdict of not guilty if it found the state had not proved each and every element contained in instruction No. 2 to its satisfaction beyond a reasonable doubt.
The word “intent” as used in the instructions was not used in any technical sense nor in any way different from its ordinary use in common parlance. There was nothing particularly technical or complex about the issue presented to the jury from either a legal or a practical standpoint. Appellant claimed an innocent intent in entering the home—appellee claimed otherwise. We think the instructions, not otherwise objected to, embodied appellant’s defense and presented the issue squarely and fairly to the jury. We do not say it would have been improper for the court to have given the substance of one of appellant’s requested instructions but at the same time we cannot say it was prejudicial error for the court to fail to do so in view of the other instructions given. We do note that in the closing argument to the jury appellant’s' counsel dwelt at length upon the issue of appellant’s intent, stressing repeatedly that appellant entered the house not with an intent to steal but with intent to look for his missing goggles and that therefore he could not be guilty of burglary under the court’s instructions. We do not think the jury was misled or that it misunderstood as to the point at issue or that appellant suffered any prejudice in the failure to give the requested instructions. Therefore the actions of the trial court are affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Harman, C.:
This appeal involves the application of statutes of limitation to a damage action brought by appellant against appellee, her former attorney.
Appellant’s petition, filed August 12, 1964, alleged in substance that on March 23, 1961, she consulted appellee about preparing her will; that appellee falsely and fraudulently represented to her that because her husband, James C. Hartman, had recently died intestate she could not execute a will until her husband’s estate was first probated, although appellee knew her husband had died intestate and that all property owned by him and appellant was held in joint tenancy, and appellee allowed appellant to be in litigation in the Probate Court of Shawnee County, Kansas, in case No. 26,414, entitled In the Matter of the Estate of James C. Hartman, Deceased, in which case appellee received a fee of $3,500.00; appellant further alleged she did not discover the fraud of appellee until the month of September, 1962. She claimed recovery of the $3,500.00 as actual damages, plus punitive damages for wrongful conduct, and she concluded her petition with the allegation “That in the alternative plaintiff is entitled to recover the said $3,500.00 from defendant upon a theory of unjust enrichment, quantum meruit, or some similar theory. . . .”
An answer to this petition was promptly filed, consisting of a general denial and further the defense that the alleged claim was barred by the statute of limitation. Soon thereafter the deposition of appellant was taken at which time certain exhibits including the files in the Probate Court of Shawnee County, Kansas, concerning the estate of appellant’s deceased husband were made a part of the deposition. Appellee filed a motion for summary judgment on the basis of the pleadings, consisting of the petition and the answer, and appellant’s deposition. At the hearing of this motion by agreement of the parties an affidavit of the appellant filed with the Grievance Committee of the Shawnee County Bar Association was received in evidence. The trial court sustained appellee’s motion for summary judgment stating there was no genuine issue as to any material fact in the case and that the claim was barred by the statutes of limitation, K. S. A. 60-512 and 60-513, which action is assigned as error upon this appeal.
From the record it appears that appellant’s husband died March 17, 1961. During his lifetime he and appellant had acquired a considerable amount of property consisting of apartment buildings, mutual fund stock, industrial stock, savings and loan accounts and approximately $125,000.00 in United States savings bonds record title to which was claimed to be in the names of appellant and her deceased husband in joint tenancy. Appellant consulted appellee about drawing a will on March 23, 1961, and thereafter appellee commenced proceedings in the Shawnee County Probate Court on the estate of the deceased husband, appellant being appointed administratrix. Appellee engaged accountants and appraisers to prepare tax returns and did other work in connection with the proceedings. On June 12, 1961, pursuant to petition therefore signed by appellant the probate court made the following finding:
“. . . that the attorneys for the Administratrix have rendered valuable services throughout the course of the administration of said estate to date; that such services have been in the best interests of said estate; and that the Administratrix should be authorized and directed to pay the law firm of Stumbo & Irwin the sum of $3,500.00 as a partial allowance on attorneys’ fees, as attorneys for the Administratrix
and entered its order authorizing and directing payment accordingly. This order has never been modified or set aside or challenged directly in any way. It appears that in July, 1961, appellant had some disagreement with appellee about a discrepancy in a deposit slip appellee gave to her showing receipt by him of rental income. In her deposition she testified that after a meeting on July 10, 1961, concerning the disagreement: “I never saw him after that. That ended it right there.” She was dissatisfied with appellee and “never had anything more to do with him.” Appellant further testified she went to Coffeyville, Kansas, where on July 17, 1961, she consulted an attorney about her business affairs. This attorney advised her at that time that there was no necessity for administering the estate of her husband. The date of this meeting is evidenced by a written receipt for money appellant paid this attorney. Then there began a series of letters between appellant’s new attorney at Coffeyville and appellee, as a result of which appellee finally prepared a petition for summary closing of the estate and on February 16, 1962, the estate was summarily closed pursuant to K. S. A. 59-1507, with the Coffeyville attorney appearing as appellant’s attorney.
Turning now to the legal questions involved in this appeal, the facts set forth in appellant’s petition state a cause of action based on alleged fraud, and she reiterates upon argument here that the gravamen of her action is fraud.
K. S. A. 60-513 provides in part:
“The following actions shall be brought within two (2) years:
“(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.”
The alleged fraudulent conduct of appellee occurred between the date appellant consulted him, March 23, 1961, and the date his law firm was allowed $3,500.00 as partial allowance for attorneys’ fee pursuant to order of the probate court, namely, June 12, 1961. She testified she had no dealings of any kind with him after July 10, 1961. She further testified that on July 17, 1961, she was advised by her new attorney that there was no necessity for the administration. Clearly it would appear from this statement in her deposition that she had fully discovered any alleged fraud at this time, that is, by July 17,1961. Moreover the estate was summarily closed at her request by her new attorney on February 16, 1962. These facts, testified to by appellant, are supported in the record by documents evidencing the pertinent dates. The petition being filed August 12, 1964, more than two years later, it would appear any cause of action based on fraud was clearly barred by the provisions of K.S.A. 60-513 (3).
At this point it may be noted that any conclusion respecting the necessity or propriety of administration of the estate of appellant’s deceased husband must perforce rest upon factual claims of appellant, and this court can make no inference as to any alleged impropriety in the commencement thereof.
Appellant’s alternative claim in her petition, without alleging any new or additional facts, asks for recovery of the $3,500.00 upon a theory of unjust enrichment, quantum meruit, or some similar theory.
Appellant concedes the existence of an implied contract between appellant and appellee, being one to pay a reasonable fee for services rendered. If the payment of the fee was unjust for any reason (other than for fraud) so as to give rise to a cause of action on an implied contract or upon unjust enrichment or quantum meruit then such cause of action accrued or arose June 12, 1961, when the payment was made. Viewed in this light the claim likewise appears to be barred as found by the trial court by the applicable statute of limitation (K. S. A. 60-512), which provides:
“The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing. . . .”
The burden remains always upon an appellant to show error in the ruling he seeks to overturn (1 Hatcher’s Kansas Digest, rev. ed., Appeal and Error, § 408; 2 West’s Kansas Digest, Appeal and Error, § 901). It is not entirely clear to this court what other theory appellant seeks to invoke for alternative relief other than heretofore discussed but there appears in the record another barrier confront ing appellant. This is the correspondence between appellee and appellant’s Coffeyville attorney, of which appellant was fully aware, as a result of which it was suggested and agreed that appellee would retain the fee paid on a compromise basis and the estate closed in a summary manner. This procedure was carried out and would appear to be a complete compromise agreement of the whole affair.
Appellant urges this matter should not have been disposed of by summary judgment. Our statute thereon (K. S. A. 60-256) is the same as Rule 56 of the Federal Rules of Civil Procedure (28 U. S. C. A.) and federal cases are helpful in applying it (Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964).
In Dam v. General Electric Co., 265 F. 2d 612, it is stated:
“. . . summary judgment may be used effectively in the area of affirmative defenses, and specifically when the affirmative defense pleaded is the statute of limitations.” (p. 614.)
In Carpenter v. Rohm & Haas Co., 75 F. Supp. 732, we find this:
“Where the defendant pleads a statute of limitations and moves for summary judgment, and it appears that the action is barred by the appropriate statute of limitations and there is no genuine issue as to any material fact in connection with such statute, or such motion, then the motion for summary judgment should be granted.” (p. 734.)
The general rule is stated in 3 Barron & Holtzoff, Federal Practice and Procedure, rules edition, § 1245, as follows:
“A summary judgment for defendant may be granted if the claim asserted against him is barred by the statute of limitations or by laches. This procedure is useful for avoiding the expense and delay of an unnecessary trial if there is no dispute as to the facts governing these defenses and the claim is barred as a matter of law.
“If the record presented on motion for summary judgment shows that plaintiff cannot successfully refute defendant’s plea of limitations, the motion should be granted.” (pp. 206, 207.)
In Schreffler v. Bowles, 153 F. 2d 1 (10th Cir. 1946) the court said:
“The salutary purpose of Rule 56 is to permit speedy and expeditious disposal of cases where the pleadings do not as a matter of fact present any substantial question for determination. Flimsy or transparent charges or allegations are insufficient to sustain a justiciable controversy requiring the submission thereof. The purpose of the rule is to permit the trier to pierce formal allegations of facts in pleadings and grant relief by summary judgment when it appears from uncontroverted facts set forth in affidavits, depositions or admissions on file that there are as a matter of fact no genuine issues for trial.” (p. 3.)
Applying the foregoing to the case at bar it seems clear the trial court correctly used summary judgment procedure. Despite her pleading in an obvious effort to avoid the bar of the statute of limitation, appellant’s testimony respecting her own actions and knowledge as to the pertinent facts and dates, solidly buttressed by documentary evidence of an undisputable nature, conclusively reveal there was no genuine issue as to any material fact, and appellee was therefore entitled to summary judgment as a matter of law.
The judgment of the trial court is affirmed.
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Hill, J.:
One of the many duties of a county commissioner in Kansas is to decide whether a city’s proposed annexation land into the city provides for the orderly growth and development of the entire community, both inside and outside the city. In this appeal, a coalition of landowners seeks the reversal of the resolution by the Board of County Commissioners of Johnson County granting an annexation petition of the City of Overland Park. Our review of the record reveals that the Board of Commissioners did not lose jurisdiction to make this decision, as the landowners contend. The Board left the record open and accepted evidence after the public hearing on the matter was held and thus did not adjourn their meeting sine die. Also, the statutory requirement for making such a decision within 7 days of the public hearing is directory and not mandatory; therefore, the commission did not lose jurisdiction to decide this matter for that reason. Next, we hold that substantial evidence supports the Board’s decision. Further, the record also reveals that those opposed to the annexation received their due process rights of receiving notice and being heard in a meaningful way despite their claims to the contrary. Finally, we hold that both the City and the Board of Commissioners substantially complied with the annexation statutes.
Overland Park wanted to expand.
In 2007, the City of Overland Park began taking steps to annex about 15 square miles of land in Johnson County. So, in August of that year, the City approved a petition for annexation that requested the Johnson County Board of Commissioners to first conduct a public hearing on the advisability of the annexation and then grant the annexation. Throughout this opinion we will refer to the Commissioners as “the Board” and Overland Park as “the City.”
A group of landowners opposing annexation formed and called themselves the “No to Annexation Coalition.” Their officers are Norman Pishny, Lynne and Gerald Matile, and Thomas S. Watson. These officers were the named plaintiffs in the challenge to the annexation filed in the district court. We will refer to them as the “No Coalition.”
Citing K.S.A. 12-521 as authority, the City filed its petition on August 23, 2007. The petition was supported by a report on the City’s plans for extending municipal services to the area. This report included:
• a physical description of the area proposed to be annexed;
• a breakdown of the existing land uses, platting, zoning, and land use planning;
• discussion about the existing streets, sewer districts, fire districts, school districts, and utilities;
• an estimate of the current population;
• the rationale for the proposed annexation;
• an explanation as to how municipal services would be extended to the annexed area;
• a fist of services not provided by the City;
• a timetable for the extension of municipal services to the annexed area and the method of financing;
• a cost analysis regarding the financial impact on residents of the City and residents of the annexed area.
One portion of the report specifically dealt with fire services. It noted that the area proposed to be annexed was located entirely within the boundaries of Johnson County Fire District #2. If the annexation was approved, the City intended to provide fire and emergency services to the annexed area through an intergovernmental service agreement with the Fire District. The report suggested the City would negotiate a 3-year agreement in which the City would compensate the Fire District $180,000 per year for providing services to the annexed area.
After some discussion, the Board decided to hold a public hearing on the proposal on October 30, 2007. The Board notified the public of this hearing by publishing in the local newspapers a copy of a sketch marking the land the City wanted to annex, the legal description of the land, and a list of the landowners who were affected by the proposal. This same information, along with a copy of the petition for annexation, the City’s service extension plan, , and various other documents were also posted on the County’s website. Later, in September, landowners in the area proposed for annexation were notified of the public hearing via certified mail and given copies of pertinent documents as well. These landowners were identified by Kansas Title Company.
Sometime prior to September 24, 2007, it was discovered that Kansas Title had failed to identify the owners of an 11.33 percent interest in a certain tract included in the area proposed to be annexed. These landowners were Frank L. Mackey and Virginia A. Mackey. Notice of the public hearing and the materials described above were then sent to the Mackeys by way of certified mail on September 24, 2007. Virginia Mackey acknowledged receipt of the mail on September 25, 2007.
Once notices were sent out, various other governing bodies began to act upon the City’s proposal. On September 10, 2007, the City agreed to pass certain “grandfathering ordinances” if the County approved the petition for annexation. Then, on September 24,2007, the City Planning Commission issued a resolution finding the proposed annexation plan was compatible with the City’s plans. The following day, Johnson County deemed the annexation plan compatible with its long range plans as well.
The Fire District met on October 19, 2007, to consider the agreement with the City. Information presented at that meeting indicated the City had indeed offered the Fire District a contract for $185,000 per year for 3 years of services to the area proposed for annexation. However, the Fire District approved a proposed agreement that increased the contract term to 10 years and required the City to pay the Fire District $508,000 per year for the first 5 years and $315,000 per year thereafter. At a City council meeting held on October 24, 2007, the City voted to approve the Fire District’s proposed agreement.
The Board’s hearing on the petition was left open.
On October 30, 2007, the Board’s public hearing on the annexation petition opened. At the meeting, the City presented testimony and exhibits regarding the proposed annexation. Then, members of the public, including the No Coalition, commented on the proposal. Near the end of the meeting, the Chairman of the Board announced that the record would close on November 30, 2007, and information could be added to the record until that time. The Chairman noted that when the record closed on November 30, the Board would make its decision within 7 days. The meeting was then adjourned.
' But the taking of public comment did not end on November 30 because on November 15, 2007, the Board passed a resolution extending the time for submitting information to the record to February 15, 2008, at 5 p.m. The Board indicated that allowing additional time would be beneficial to the citizens and the City, as they would have more time to provide comments and information after the holiday season.
Both the City and the No Coalition took advantage of this opportunity to make additional comments and submissions to the Board. Starting in late January 2008 and throughout the month of February, the City submitted additional information to the record. On January 25, 2008, it submitted a rejoinder to statements made by representatives of the Fire District in response to questions posed by the County. Then, on February 6, 2008, the City filed (1) a rejoinder to the responses provided by the Johnson County Sheriff s Office in response to questions posed by the County; (2) a rejoinder to the responses provided by the City of Spring Hill in response to questions posed by the County; and (3) a response to comments and inquiries of miscellaneous citizens. The City also submitted further information to the record on February 12, 2008. On February 15, 2008, the City submitted more information to the record, including a document titled, “fire service agreement (Option 6)” and “Substitute for SEP Errata Sheet No. 2.”
For their part, the No Coalition and other members of the public also sent emails to the Board, appeared personally and spoke at regular Board meetings, and presented other information on their position. On February 15, 2008, counsel for the coalition also submitted numerous exhibits to the record. The record closed sine die at 5 p.m. that day. After that, on February 19, 2008, the No Coalition counsel wrote the Board, again expressing opposition to the annexation. The bulk of this letter complained about the City’s “last-minute” negotiations with the Fire Department. The letter condemns the Option 6 fire agreement and the City’s attempt to “cobble together” a plan.
Finally, on February 21, 2008, the Board rendered its decision on the matter. After setting forth a great deal of analysis, Johnson County approved the annexation in part and denied it in part. After dividing the proposed annexation areas into five separate parts, the Board decided that annexation of areas 1, 2, and 3 was advisable, but annexation of areas 4 and 5 was not. This meant that a little over 8 square miles were annexed by the City.
Landowners from the No Coalition appealed the Board’s decision to the district court. That court affirmed the decision, finding the Board’s action was supported by substantial evidence, and the Board acted lawfully and within the scope of its authority.
To us, the No Coalition raises five issues in their challenge to the district court’s approval of the annexation:
• the annexation is void because the Board lacked jurisdiction to enter its final order;
• there was insufficient evidence upon which to grant the annexation;
• the landowners’ due process rights were violated because of continuous changes to the City’s plan;
• the landowners’ due process rights were violated due to ex parte communications related to the annexation; and,
• the Board and the City did not comply with the annexation statutes.
We review the law of annexation and our standard of review of such questions.
The City sought approval of the annexation from the Board by following the procedures set out in K-.S.A. 12-521 et seq. According to that law, a city must first seek the approval of the board of county commissioners for such annexation. The statute goes on to establish many procedural requirements that the city and county must follow during the annexation process. These procedures include notice to all affected, including other units of government as well as landowners, and a public hearing, where the board of county commissioners is acting in a quasi-judicial capacity. Ultimately, the board must consider die impact of approving or disapproving the annexation and make written findings of fact and conclusions concerning whether annexation would cause manifest injury to the landowners, nearby landowners, and the city. K.S.A. 12-521(c). In fact, K.S.A. 12-521(c) lists 14 specific factors the board must consider when making its decision.
When reviewing a county’s decision about such a proposal, this court must determine whether, as a matter of law, the board of commissioners (1) acted fraudulently, arbitrarily, or capriciously; (2) issued an order supported by substantial evidence; and (3) acted within the scope of its authority. City of Topeka v. Board of Shawnee County Comm’rs, 252 Kan. 432, 437, 845 P. 2d 663 (1993). In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 20-21, 687 P.2d 603 (1984). In addition, this court cannot substitute its judgment for that of the board members who act as the elected representatives and were able to observe and hear testimony. The determination whether a board acted arbitrarily or capriciously depends entirely on whether the board’s conclusion with regard to manifest injury was based upon substantial evidence. In re Petition of City of Kansas City for Annexation of Land, 253 Kan. 402, 408, 856 P. 2d 144 (1993).
Finally, the test we apply to municipal actions is one of substantial compliance with the annexation statutes. Substantial compliance means compliance with respect to the essential matters necessary to assure every reasonable objective of the annexation statutes. City of Lenexa v. City of Olathe, 233 Kan. 159, 164, 660 P.2d 1368 (1983). On appeal, it is not the function of this court to reweigh the evidence. This court must only concern itself with the evidence which supports the findings below and not evidence which might have supported contrary conclusions. Baggett v. Board of Douglas County Comm’rs, 46 Kan. App. 2d 580, 585, 266 P.3d 549 (2011).
The Board did not lose jurisdiction to make this annexation decision because it left the record open.
The No Coalition argues this annexation order by the Board is void because it did not act in a timely fashion. The group argues the Board adjourned tire October 30, 2007, public hearing “sine die” — so it had only 7 days from that date to render a decision. But the Board did not render a decision until February 21,2008— clearly more than 7 days after die October 30 hearing. Two reasons compel us to reject this argument. First, we are not convinced the Board adjourned sine die on October 30 because the Board left tire record open, allowing further public comment and it considered additional information submitted during this extension of time. Second, even if the No Coalition had shown the October 30 meeting was adjourned sine die, they have not demonstrated as a matter of law that the failure to issue a judgment within 7 days renders their decision void for lack of jurisdiction. We consider a question of jurisdiction to be a matter of law over which we exercise plenary review. Max Rieke & Brothers, Inc. v. Van Deurzen & Assocs., 34 Kan. App. 2d 340, 343, 118 P.3d 704 (2005).
The focus of this argument is on language used in the annexation statute itself. K.S.A. 12-521(d) states the “board of county commissioners shall render a judgment [on a proposal for annexation] within seven days after the [public] hearing has been adjourned sine die.” (Emphasis added.) No Kansas case has addressed what it means to adjourn a public meeting on an annexation proposal “sine die.”
The record discloses that near the end of the public hearing, someone asked when the Board would meet to consider the annexation issue. The Chairman of the Board responded that it could be done at a regular or special meeting. When asked whether a meeting had been scheduled, the Chairman explained that the Board had not scheduled anything and stated:
“What we know from this point is: we’ll take this input; we’ve currently scheduled the record to close on the 30dr; depending on what occurs between now and the 30th, we may open and extend that time. So I can’t tell you what date. If the record stays as is, it will close on the 30th, we will be then maldng a decision within seven days. If that’s a normal Board meeting, that would be the meeting of the sixth of December. If there’s a special Board meeting set, then we would have to publish that, and we’ll give you that notice.”
The Chairman then declared the meeting “Adjourned.”
Indeed, Black’s Law Dictionary 47 (9th ed. 2009) defines “adjourn sine die” as ending “a deliberative assembly’s or court’s session without setting a time to reconvene.” And here, there has been no claim (nor is there any evidence) that the Board set a time to reconvene after tire October 30, 2007, public hearing. We note that this term is often used with the closing of the legislature’s sessions and means it will no longer deliberate until the body is reconvened by operation of law. In other words, the body has finished its work until the law compels it to meet again. For purposes of this annexation statute, we take that term to mean that time when the board will no longer take evidence on the annexation matter. That definition does not fit with the facts here.
To tire contrary, it seems the Board made a conditional adjournment. A conditional adjournment is a term defined in the same annotation as the definition of adjournment sine die in Black’s Law Dictionary 47 (9dr ed. 2009). It is “[a]n adjournment that does not schedule another meeting, but provides for reconvening the assembly at an officer’s or board’s call or under other defined circumstances.” (Emphasis added.)
Those circumstances calling for the Board to reconvene were made clear by the Board here. Even though the Board did not set a date to reconvene on the annexation matter, the Board stated that the annexation proceeding would remain open for further submission of information to the record. In fact, it was explained in three separate instances at the meeting that the record would close on November 30, and the Board would make its decision within 7 days of that date. The Chairman did not use the phrase “sine die” when adjourning the October 30 meeting, but only stated the meeting was adjourned.
When the district court looked at this issue, it concluded the Board did not adjourn the public hearing sine die on October 30, 2007, but expressly held the record open for further submission to the record. We agree with the district court.
The Board leaving the record open could not have been a surprise to the No Coalition. At both the start and end of the October 30 hearing, the Chairman explained that the record would remain open until November 30,2007, at 5 p.m., and that correspondence, comments, and information could be submitted to the record until then. No person at the public meeting objected to this procedure. And the No Coalition does not claim that an objection was made either at or after the meeting.
To the contrary, the No Coalition took advantage of the procedure suggested by the County. Orr, who represented the No Coalition, submitted to the record on February 15, 2008, a 46-page document which included proposed findings, conclusions, authorities, and other documents. Several members of the No Coalition thanked the Board for allowing additional time to submit information to the record after the public hearing. Also, they appeared at subsequent Board meetings and presented information on the No Coalition’s position. Two of tire No Coalition members sent a letter to property owners of the annexed area urging them to engage in a letter-writing campaign to the Board prior to the close of the record on November 30.
In addition, the No Coalition’s first amended notice of appeal stated: “The Board adjourned the matter sine die on February 15, 2008 at 5:00 p.m. ” (Emphasis added.) It was not until the Plaintiff s second amended petition that the No Coalition changed their position and began to allege the meeting was simply adjourned. Although not in the annexation context, our Supreme Court has said that parties on appeal may not complain of matters to which it consented or take advantage of error that it invited or in which it participated. Hawkinson v. Bennett, 265 Kan. 564, 590, 962 P.2d 445 (1998).
In a similar vein, tire No Coalition has not shown the Board failed to substantially comply with any essential matter in this proceeding, as the No Coalition clearly benefitted from the opportunity to submit additional information to the record and participate in Board meetings. See City of Lenexa, 233 Kan. at 163-64. Clearly, one of the objectives of the annexation statute is for the public to have the opportunity to express to the Board their views on the annexation proposal. The No Coalition certainly had ample opportunity here to submit their views.
The No Coalition’s argument that the Board was required to continue the hearing for good cause under K.S.A. 12-521(b) is also unpersuasive. K.S.A. 12-521 (b) provides that the public hearing shall be fixed on a date that falls 60-70 days after the petition for annexation was presented. The remainder of the subsection describes the notice requirements as they pertain to the public hearing. The last sentence states that the board may, for good cause shown, “continue the hearing beyond the time specified in the notice without further publication.” K.S.A. 12-521(b).
We do not believe that provision of the statute applies here. The Board did not continue the hearing. Instead, the Board simply allowed the record to remain open for a period of time and set no date for further public meetings. Second, the statutory provisions relate mostly to notice. The sentence, which is placed in the section regarding notice requirements, gives the Board authority to continue the public hearing without further notice to the public (via publication). This brings us to our third observation.
The statute does not state, as the No Coalition claims, that in order to continue the public meeting, a motion must be made, the Board must take a vote, and the Board must show proof of good cause. In fact, the annexation statutes contain no specific procedure for granting continuances. When statutes are plain and unambiguous, this court will not read a statute to add something not readily found in the statute. Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001).
On this note, the No Coalition asks this court to take judicial notice of Exhibit 107, the Rules of Order of Johnson County. The No Coalition argues these rules confirm that Board action, such as the grant of a continuance, required a motion, a second, and a statement by the Chairman. However, the No Coalition does not mention the district court’s ruling that certain exhibits proposed by the No Coalition, including Exhibit 107, were “outside the permissible scope of review by the Court.” Because the No Coalition has not appealed this evidentiary ruling, the No Coalition cannot rely on the exhibit on appeal. See Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003).
The No Coalition also argues that keeping the record open is not the same as holding a public hearing, and if allowing people to send letters or make presentations equates to having a public hearing, then all statutes requiring public hearings are meaningless. But the No Coalition fails to acknowledge that the Board did hold a public hearing as required by statute. The No Coalition cites no authority indicating it was entitled to something more.
The No Coalition also notes the Board later passed a resolution to continue the public hearing process — suggesting the Board knew it had made a mistake by not formally continuing the hearing. The group is apparently speaking of the Board’s November 15 resolution extending the time for submitting information to the record to February 15, 2008. The No Coalition argument on this point is unpersuasive for two reasons. First, the coalition offers mere speculation about the Board’s intentions — as their allegation is not supported with any citation to the record. Second, the Board’s explanation for its actions is a more likely characterization of what occurred. As the Board points out, the November 15 resolution to extend tire time for keeping the record open was necessary in order to give public notice of the extension; unlike the November 30 deadline that was announced at the October 30 public hearing, there was no public proceeding at which the extension of time could be announced. In summary, the No Coalition has not shown the October 30 meeting was adjourned sine die.
We turn now to the question that if the Board had adjourned sine die, would that mean it had no jurisdiction to render an annexation decision more than 7 days later? In our view, because the 7-day statute is directory and not mandatory, the Board did not lose jurisdiction to decide this matter.
To support their jurisdictional argument, the No Coalition relies upon City of Shawnee, 236 Kan. at 13, in contending: Jurisdiction is conferred upon a county by the express provisions of K.S.A. 12-521, and a board has no jurisdiction to act upon a petition for annexation unless it substantially complies with the language and purpose of the statute. This is only a general statement regarding the principles of law applicable to annexation proceedings.
City of Shawnee did not address the specific issue raised here— whether a board loses jurisdiction to issue a decision on an annexation proposal if it does not render a decision within 7 days of adjourning a public hearing sine die. The only jurisdictional issues raised in City of Shawnee were (1) whether the appellate court could consider an appeal where the notice of appeal was allegedly untimely; and (2) whether a board had authority to reconsider and modify its prior denial of an annexation petition. 236 Kan. at 9,12. City of Shawnee does not control here.
To the contrary, we find other cases more persuasive. In Expert Environmental Control, Inc. v. Walker, 13 Kan. App. 2d 56, 56-57, 761 P.2d 320 (1988), the Kansas Department of Health and Environment failed to issue an order within 30 days of an administrative hearing as required by statute, but issued its order after 154 days. On appeal, the party against whom the order was sought argued the order was void for lack of jurisdiction. 13 Kan. App. 2d at 57.
This court disagreed, holding the 30-day statutory time limit was not mandatory, and the agency’s failure to render a timely order did not deprive the agency of jurisdiction. The court explained:
“ ‘In determining whether a legislative provision is mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system and dispatch of the public business, the provision is directory.’ Paul v. City of Manhattan, 212 Kan. 381, Syl. ¶ 1, 511 P.2d 244 (1973).” 13 Kan. App. 2d at 58.
The Walker court noted that in Paul, the Supreme Court identified two factors that aid in determining whether a statute is mandatory:
“ ‘Factors which would indicate that a statute or ordinance is mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance.’ 212 Kan. 381, Syl. ¶ 2.” 13 Kan. App. 2d at 58.
After examining those factors, the Walker court concluded that agency delay did not deprive KDHE of jurisdiction or render its order void, noting the 30-day time limit was only a procedural requirement that was directory in nature and intended to secure order, system, and the dispatch of public business. 13 Kan. App. 2d at 58.
Likewise, the 7-daytime limit of K.S.A. 12-521 (d) is a procedural requirement that is directory in nature. K.S.A. 12-521(d) contains no negative words requiring that a judgment could not be rendered at any other time and contains no penalty or consequence of noncompliance. The requirement appears only to fix a mode of proceeding with tire annexation process in order to secure the timely dispatch of public business.
Because the 7-day requirement is directory, not mandatory, the Board’s failure to issue a judgment on the annexation petition within 7 days of the public meeting would not have rendered the Board’s judgment void for lack of jurisdiction — even if the meeting had been adjourned sine die.
For their final jurisdiction contention, the No Coalition argues the Board’s decision exceeded its own jurisdiction because it required the City to enter an unspecified, future agreement with Aubry Township. The No Coalition argues that because a county loses jurisdiction over an order once it makes its final decision, there was no way for the County to enforce a future agreement with Aubry Township — so the decision was ultra vires and void.
Even so, when examined in light of all of the annexation statutes, any annexation authorized under K.S.A. 12-521 is conditional. After all, the legislature has obliged the Board, through the requirements of K.S.A. 12-531, to review a city’s compliance with its service extension plan 5 years after approval of the annexation. In cases of noncompliance with the plan, the Board could order the land “de-annexed.” With such authority granted by the legislature, the fact that the Board here required the City to later reach an agreement with Aubry Township is hardly ultra vires.
The No Coalition’s argument on this point is not supported with legal analysis or citation to authority. Our Supreme Court has ruled that when a litigant fails to press a point by supporting it with pertinent authority, he waives or abandons the issue. McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002). Thus, we deem the No Coalition has abandoned this argument.
We hold the Board did have jurisdiction to render a decision in this case.
The evidence supports the Board’s decision.
At this point, we turn to the coalition’s claims that the evidence did not apply to the area actually annexed, the Board considered the wrong plan, and the district court applied an incorrect standard of review. Our standard of review of such questions is straightforward. This court must determine whether, as a matter of law, the board of commissioners (1) acted fraudulently, arbitrarily, or capriciously; (2) issued an order supported by substantial evidence; and (3) acted within the scope of its authority. City of Topeka v. Board of Shawnee County Comm’rs, 252 Kan. 432, 437, 845 P.2d 663 (1993). Finally, when the district court has made findings of fact and conclusions of law, this court determines whether those findings are supported by substantial competent evidence and are sufficient to support the conclusions of law. Banzerv. City of Wichita, 237 Kan. 798, 802, 703 P.2d 812 (1985).
Wrong area
The No Coalition complains that “crucial” facts that were submitted pertained to the entire area proposed for annexation (i.e., 14.95 square mile area), but those facts were not relevant to the smaller area that was actually annexed. For example, they say the City never provided cost data and tax revenue data for the areas actually annexed, and the only data provided on this point pertained to the entire area proposed for annexation. The group argues that under K.S.A. 12-521(a)(2) and (c)(7) and (8), the cost of annexation must be disclosed. We hold a different view. The City substantially complied with the law, and it was not required to submit new information limited to each of the five areas created by the Board in its approval. In other words, information pertaining to the entire area is sufficient.
It is important to examine the Board’s decision before going further. The Board stated that in determining whether all or part of the proposed annexation should be approved, it considered the proposed annexation area “both as a whole and in identifiable parts.” The Board identified five separate areas within the proposed annexation area that had common characteristics and could readily be considered as individual areas — Area 1, Area 2, Area 3, Area 4, and Area 5. The Board then made 14 general findings (labeled a through n) that pertained to “the area as a whole.” These findings were labeled in a manner nearly identical to the 14 criteria set forth in K.S.A. 12-521(c).
Notably, K.S.A. 124521(c)'states that upon holding the public hearing, the board shall make written findings of fact and conclusions determining whether the proposed annexation “or the annexation of a lesser amount of such area” causes manifest injury to the owners of the land proposed to be annexed or manifest injury to the owners of nearby land or the city if annexation is disapproved. The statute provides:
“In determining whether manifest injury would result from the annexation, the board’s considerations shall include, but not be limited to, the extent to which the following criteria may affect the city, the area to be annexed, the residents of the city and the area to be annexed, other governmental units providing services to the area to be annexed, the utilities providing services to the area to be annexed, and any other public or private person, firm or corporation which may be affected thereby:
“(1) Extent to which any of the area is land devoted to agricultural use;
“(2) area of platted land relative to unplatted land;
“(3) topography, natural boundaries, storm and sanitary sewers, drainage basins, transportation links or any other physical characteristics which may be an indication of tlie existence or absence of common interest of the city and the area proposed to be annexed;
“(4) extent and age of residential development in the area to be annexed and adjacent land within the city’s boundaries;
“(5) present population in the area to be annexed and die projected population growth during the next five years in the area proposed to be annexed;
“(6) the extent of business, commercial and industrial development in the area;
“(7) the present cost, methods and adequacy of governmental services and regulatory controls in the area;
“(8) the proposed cost, extent and the necessity of governmental services to be provided by the city proposing annexation and die plan and schedule to extend such services;
“(9) tax impact upon property in the city and the area;
“(10) extent to which the residents of the area are directly or indirectly dependent upon the city for governmental services and for social, economic, employment, cultural and recreational opportunities and resources;
“(11) effect of the proposed annexation on the city and other adjacent areas, including, but not limited to, other cities, sewer and water districts, improvement districts, townships or industrial districts and, subject to the provisions of K.S.A. 12-521a, fire districts;
“(12) existing petitions for incorporation of the area as a new city or for the creation of a special district;
“(13) likelihood of significant growth in the area and in adjacent areas during the next five years; and
“(14) effect of annexation upon the utilities providing services to the area and the ability of those utilities to provide those services shown in the detailed plan.”
Here, the Board set forth a separate section for each of these criteria and discussed the evidence presented on each point. This evidence pertained to the area proposed for annexation as a whole — not to the five separate areas identified by the Board. Some sections of the ruling amounted to a few sentences, while other sections extended to more than a page of discussion.
Then, the Board set forth its findings with regard to the factors in K.S.A. 12-521a, which deals with fire protection. Notably, K.S.A. 12-521a states:
“When determining the effect of a proposed annexation on a fire district or a portion of a fire district, considerations by the board of county commissioners shall include, but not be limited to, the:
“(a) Response time of the city and the fire district to the area proposed to be annexed;
“(b) impact on the fire district from the decrease in its tax base if the annexation is approved;
“(c) impact on the city’s provision of fire service if the annexation is disapproved;
“(d) impact on the residents of the area if the annexation is approved; and
“(e) impact on the remainder of the fire district if the annexation is approved.”
The Board set forth a separate section, highlighting the relevant evidence with regard to each of these five factors. This evidence also pertained to the area proposed for annexation as a whole.
Finally, the Board made specific findings with regard to each of the five separate areas it identified. For Area 1, the Board made 9 findings. For Area 2, the Board made 8 findings. For Area 3, the Board made 9 findings. For Area 4, the Board made 7 findings. For Area 5, the Board made 8 findings.
We view these findings as a result of the Board sitting in a quasi-judicial fashion. For example, in the Board’s examination of areas 4 and 5, the Board noted both areas had mostly larger tracts of land. Some tracts were 80 or 160 acres. Both areas required 10 acres minimum for a home site, in contrast with areas 1, 2, and 3 which could be characterized as mostly urban fringe properties. In areas 4 and 5, sewer service was not expected for a minimum of 3 years and up to 17 years for other parts of the two areas, in marked contrast with the other three areas that all had sewer service of some type. Furthermore, the City of Spring Hill considered part of area 5 to be in its growth area. Also, that area included some of the Spring Hill school district and the Spring Hill recreation district. All of these appear to be excellent reasons for denying the annexation petition for those two areas. That reasoning does not mean the Board’s findings covered the wrong area as the coalition contends.
It is true that the Board did not discuss each of the 14 factors set forth in K.S.A. 12-521(c) and each of the 5 factors set forth in K.S.A. 12-521a with regard to each of the five areas. However, for each area tire Board discussed some of the factors. For example, with regard to Area 1, the Board mentioned the unincorporated portion of tire area, how the area bordered with the city, how the area was subdivided and platted, the present population, how the land was zoned, and the Fire District’s agreement to provide services to the area, the availability of sewer facilities, and the nature of the area.
When the district court dealt with this subject of substantial evidence, dre court concluded that the record, “which consisted] of 10 volumes of over 3,000 pages of written reports, hearing minutes and other documentation,” demonstrated the Board substantially considered the K.S.A. 12-521(c) criteria when approving the annexation in part. With regard to Areas 1 through 5, the court stated: “The Board acted reasonably and in compliance with the statute in considering the proposed annexation area as 5 areas and made adequate findings related to each area. The findings of tire Board as to each area were supported by substantial evidence in the record.” Nothing in the record on appeal leads us to disagree with the district court’s conclusion on this point.
The flaw with the No Coalition’s argument on this point is that it is unsupported by the annexation statutes or Kansas case law. K.S.A. 12-521(c) approves annexation of the area proposed for annexation “or the annexation of a lesser amount of such area.” K.S.A. 12-521(d) states that if a majority of the Board concludes that annexation “or any part thereof’ should be allowed, the Board shall grant the annexation by order. The annexation statutes clearly contemplate a situation such as this one, where the Board grants an annexation in part. No provision of the statutes state the City must provide an amended plan or amended information in the event that a partial annexation is being considered by the Board, or if it is actually granted.
Further, no provision of the annexation statutes indicates that if an annexation is granted in part, the Board must have separate information pertaining only to the area it decides should be annexed. And no law requires the City to provide such segregated information in its proposal or plan. Instead, in discussing the City’s required plan for the extension of services, Kansas law refers to the extension of services to the area “proposed to be annexed.” K.S.A. 12-520a(a)(3). And, when stating the City must prepare a report setting forth its plan for extension of services — and the requirement that the report contain the estimated cost of providing services — Kansas statues refer to the area “proposed to be annexed.” K.S.A. 12-520b(a)(l) and (2). Clearly, the City is only required by statute to provide information pertaining to the entire area proposed for annexation.
If we were to adopt the view of the No Coalition on this point, the City would need to submit multiple annexation plans with various combinations of segregated data in order to cover the many possible combinations the Board could approve. Certainly, the legislature would have stated such a requirement had it intended to make one. See Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-08, 214 P.3d 676 (2009).
The No Coalition does not claim the City failed to provide any particular information as it pertains to the area proposed for annexation as a whole, so we must presume this information was properly provided. And the Board’s decision reflects that it did, in fact, consider some of the statutory factors as they related to the smaller area actually annexed. In light of the extensive amount of information and data before the Board and its thorough analysis of each factor it must analyze when considering an annexation, we conclude, as did the district court, that substantial evidence supports the Board’s approval of this annexation of just part of the land.
Refinements made to the service extension plan offered by the City did not make it the wrong plan as the No Coalition contends.
The No Coalition next argues the City’s plan changed so many times that the Board based its ruling on the wrong plan. The group says the Board’s decision cited information obtained from the City’s August 20, 2007, plan — but that plan was amended many times to reflect different information. In the No Coalition’s view, this continuous amendment to the plan by the City made meaningless the statute that requires the City to attach a service extension plan to the annexation petition. We are not persuaded by this contention because the No Coalition’s view of what constitutes a plan is too narrow.
Under the statutoiy scheme at play here, the plan the City was required to present to the Board is simply a written proposal that sets out how it intends to extend municipal services to the area to be annexed. K.S.A. 12-521(a)(2) requires the plan to have sufficient detail so that it provides a reasonable person a full and complete understanding of the intentions of the ciiy on how it is going to extend each service to the annexed area. It must also estimate the costs for extending such services.
The No Coalition claims the Board cited outdated evidence with regard to the cost of governmental services — noting the Board referred to the City’s original plan for the proposed cost of such services, but corrected cost information was provided in later submittals. But the No Coalition fails to point us to this corrected cost information in the record. Under Supreme Court Rule 6.02(d) (2011 Kan. Ct. R. Annot. 39), any material statement made in an appellant’s brief that is not keyed to the record on appeal may be presumed to be without support. See Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 777, 27 P.3d 1 (2001). Because the No Coalition’s claim is not supported with citation to the record, the claim fails.
The No Coalition next says the Board’s decision differed from updated information in terms of cost and revenue numbers. Specifically, the group claims the Board’s decision cites total operating costs of $625,000 for 2008, net operating costs of $446,610 for 2008, and decreased net operating costs of $218,035 for 2009 due to receipt of taxes and other fees. But according to the No Coalition, plan changes that were allegedly distributed at the October 30, 2007, public hearing indicated actual revenues would be $599,050 and net operating costs would be $531,825.
The No Coalition correctly cites the numbers. Although the City’s original plan estimated net operating costs of $218,035 for 2009, the City’s amended numbers indicated net operating costs of $531,825 for that year. This is obviously a substantial difference.
Nevertheless, this court cannot conclude tire Board’s decision was not supported by substantial evidence based on this one, albeit large, variance between estimates. It is important that an estimate was given and an updated estimate with more accurate figures is desirable for decision makers and the public as well. K.S.A. 12-521(a)(2) merely requires that the City provide an “estimated cost” of providing services to the annexed area. Under K.S.A. 12-521(c), the Board must make findings of fact and conclusions on the annexation proposal “based upon the preponderance of evidence presented to the board.” And as the Board points out on appeal, the City’s plan was not the only evidence submitted to the Board.
The Board had several thousand pages of evidence before it, including documents and testimony. In its decision, the Board stated it has considered the “entire record of proceedings,” including the petition for annexation and service extension plan, the testimony and comments heard at the October 30 meeting, the responses for requests for information made by the Board, the written comments of residents and members of tire public, supplemental information provided by the City and the City of Spring Hill, and information provided by the No Coalition attorney Orr. As we have noted, it is not the function of this court to reweigh the evidence; we are concerned only with the evidence which supports the findings made below and not the evidence which might have supported contrary conclusions.
We find no merit in the group’s final argument on this point— that the City’s failure to provide a plan that includes evidence relevant only to a partial annexation renders the statutory, 5-year annexation review requirement impossible. See K.S.A. 12-531(a).
The City set forth a timetable for extending municipal services in its August 20, 2007, plan. The table indicates the City and County would immediately provide street, bridge, and storm drainage maintenance, for example, to the annexed area. At the time of any mandated statutory review, the Board could hear testimony, as permitted under K.S.A. 12-531(b), on whether the City has followed through with providing services such as these.
The effect of the district court’s comment is exaggerated hy the No Coalition.
Next, the No Coalition contends the district court applied the wrong standard when it ruled the City’s evidence must not be relevant to the annexation actually granted. The context of this statement is important here. In response to die No Coalition’s arguments about the evidence pertaining to the wrong area, the district court stated:
“No Coalition asserts that the defendants failed to substantially comply with the annexation statutes because the proposed services plan was not germane to the area approved for annexation. However, K.S.A. 12-521 allows the board to approve a portion of the proposed annexation and does not require an amended proposed services plan be presented to the board. The plan must simply provide estimates of anticipated costs, and need not be amended to provide the board with better estimates once additional information has been obtained.
“As the Court ruled in its March 31 Journal Entry, the defendants substantially complied with tire annexation statutes. The plan provided the statutorily required information and must not be germane to the area approved for annexation.” (Emphasis added.)
Focusing on the italicized words, the No Coalition argues to us that the district court’s statement means that any annexation plan, such as an annexation plan for the City of Salina, for example, could have been used to support the annexation in this case.
This argument greatly exaggerates the district court’s ruling and is unpersuasive. When read in context, it is clear that the district court’s statement responded only to the No Coalition’s argument that the Board must have segregated evidence regarding the area actually annexed. The district court did not suggest that data derived from any property located in the state of Kansas could be used to support the proposed annexation in this case, but merely indicated that the data pertaining to the proposed annexation could support the grant of a partial annexation.
We find no procedural due process errors.
The No Coalition next contends the annexation is void because their members’ due process rights were violated in two ways: (1) the City made numerous modifications to its original plan, but the County held no public hearings at which landowners could address the City’s new information; and (2) the County, the City, and the Fire District engaged in ex parte communications regarding the annexation. The question of what process is due in a given case is a question of law over which an appellate court has unlimited review. State v. Wilkinson, 269 Kan. 603, 608-09, 9 P.3d 1 (2000). Our review of the record compels us to hold there was no deprivation of due process here.
When dealing with questions such as these, the court must first determine whether a protected liberty or property interest is involved, and if so, the nature and extent of the process due. Winston v. Kansas Dept. of SRS, 274 Kan. 396, 409, 49 P.3d 1274 (2002). Here, the No Coalition is correct that they had some due process rights in the annexation proceeding. In In re Petition of City of Overland Park for Annexation of Land, 241 Kan. 365, 370-71, 736 P.2d 923 (1987), our Supreme Court explained that the full rights of due process present in a court of law do not automatically attach to a quasi-judicial proceeding such as an annexation proceeding. Nevertheless, a fair reading of that opinion leads to the conclusion that the basic elements of procedural due process of law — notice and an opportunity to be heard at a meaningful time and in a meaningful manner- — do apply in annexation proceedings. Thus, we must decide whether the No Coalition was given adequate notice and an opportunity to be heard at a meaningful time and in a meaningful manner throughout the annexation proceedings.
We turn first to the questions raised by the many additions and corrections made to the plan before the annexation was granted in part. We find the group had adequate notice and an opportunity to be heard.
The No Coalition does not claim the group had no notice of the October 30, 2007, public hearing or the information distributed prior to that meeting. Instead, the group complains about the information distributed at the hearing and later. Further, the group does not claim it had no notice that the City submitted new information or that it was unable to access it, but only that the information “dramatically altered” and “re-wrote” the City’s original plan. From this, the No Coalition concluded they were entitled to another public hearing at which it could address the new information.
The problem with this argument is that the group fails to provide any legal authority that requires a public hearing every time an annexation record is supplemented with additional information. Instead, the annexation statutes contemplate only a single public hearing. The statutes refer to “the public hearing.” See K.S.A. 12-521(b). (Emphasis added.) Simply put, tire No Coalition has not shown it was entitled to more than one public hearing. Moreover, there is no evidence it was denied public hearings, as it claims in its brief. The group points to no instance in which it requested a public hearing and that request was denied.
Further, there is no Kansas statute that prohibits the Board from allowing the City and members of the public to submit information to the record after the public hearing. The Board’s ultimate decision should be “based upon the preponderance of evidence presented to the board.” K.S.A. 12-521(c). The annexation statutes do not state when or where this other evidence must be obtained and do not indicate that the City’s original information cannot be sup plemented, corrected, and updated. Particularly where the No Coalition had access to all submissions of information via the County’s website, the No Coalition cannot show their due process rights were violated.
Clearly, the No Coalition cannot claim they had no opportunity to respond to any information submitted to the record. The record demonstrates quite the opposite. Even if, as the No Coalition says, the City presented changes that consisted of “hundreds of pages of information” at the October 30, 2007, public hearing, it does not explain why it had “no opportunity to read and consider” the new information. Orr, Pishny, and the Matiles all spoke at the meeting. The record remained open for 3V2 months following this meeting, giving the No Coalition plenty of time to access and respond to any of the information presented at the meeting. In fact, the No Coalition did respond.
After the October 30 meeting, the No Coalition and other members of the public wrote emails to the Board, appeared at regular Board meetings, and presented information on their position. And on February 15, 2008, the final day for submitting material to the record, Orr submitted a 46-page document on behalf of the No Coalition that included proposed findings, conclusions, authorities, and other documents. The No Coalition cannot legitimately argue they did not have ample opportunity to be heard on this annexation.
In its brief, the No Coalition specifically complains about the City’s submissions to the Board made on February 12, 2008, and February 15,2008. First, the No Coalition says the City’s February 12, 2008, submission contained modifications that were made “far too late” for them to have notice or an opportunity to be heard on the information. The No Coalition says these changed the original plan “beyond recognition,” into a totally different creature.
The No Coalition says the City’s February 12 submission “explicitly changed” the plan, and that platting and population trends changed but the No Coalition fails to identify the exact changes. From the brief, this court could assume the City’s population estimate simply changed from 105,000 to 105,001. The No Coalition tends to use many colorful phrases when describing the alleged changes, such as “morphed beyond recognition,” “totally different,” and “massive amounts,” but does not really articulate what actually changed and how the changes affected the outcome. This court therefore cannot conclude that the Februaiy 12, 2008, submission contained changes that deprived the No Coalition of the opportunity to fairly respond.
The other problem is that the No Coalition, through its attorney Orr, did respond to the City’s Februaiy 12 and 15 submissions. The group argues the Board ignored this submission but the record does not clearly disclose that. That is a conclusion of the group that is based upon an inference.
After the record closed on Februaiy 15, 2008, Orr wrote the Board a letter dated February 19, 2008, commenting on the City’s “last-minute submission of a new proposal for fire protection, and with the hope that the public can comment on any information the City submits . . . .” The letter addressed many of the group’s concerns about the fire protection issue. The No Coalition cannot legitimately argue it had no opportunity to address the City’s final submissions to the record. The group contends the Board ignored this last letter but do not show us any proof of that allegation.
Second, the No Coalition says the City’s February 15,2008, submission to the record “radically altered” the City’s original plan. But the group fails to articulate what actually changed as a result of the submission. For example, the No Coalition says the City’s “last-minute submittals changed the cost of the annexation by at least $3,928,000,” but fail to cite the record for support. The No Coalition also says the City materially changed the net tax impact on residents, but does not identify the amount of change or cite the record for evidence. The No Coalition claims the City’s final two submissions were so late they could not be scanned and posted to the County’s website “in time to impart notice” to the No Coalition, but again fail to support this claim with evidence from the record. In reality, the record contains no evidence regarding tire exact time the February 15, 2008, submission was made, nor does it contain evidence regarding what time any documents were posted on the County website — or what was actually posted. And significantly, the No Coalition neglects to mention it also (via Orr) submitted a 46-page document to the record on February 15,2008.
In addition, we note the Board found that the property tax levy would actually decrease because the fire protection levy assessed by the City was considerably smaller than the levy imposed by the Fire District. Along the same line, the contract between the City and the fire district was proposed at the October meeting and finalized before the public comment period expired. This meant the Board had real figures to deal with and not just an estimated proposal. When making decisions, it is better for a board that is acting in a quasi-judicial matter to deal with accurate figures than gross estimates.
In response to these claims, the Board says the No Coalition “greatly misrepresents” the information submitted on Februaiy 12 and 15. The Board claims most of the documents submitted at that time were copies of documents that had previously been submitted or minutes of meetings and resolutions. The No Coalition does not challenge this contention in its reply brief.
The problem with the No Coalition’s argument remains. This controversy when it was considered by the Board was not a civil suit where parties are entitled by law to complete discovery of information. It was, rather, a governmental board seeking information, weighing that information and making a decision about the advisability of proceeding with annexation. Even if the City supplemented the record in a manner that significantly changed the information they initially provided in its report and plan, the No Coalition has not demonstrated this is contrary to law or that it was unfair under the facts of this case. It was up to the Board to sort through all the information submitted to the record, then consider and weigh this evidence, and render a decision that would “insure the orderly growth and development of the community.” See K.S.A. 12-521(c). As long as the No Coalition had access to this information and it was able to respond to the information — and here, it did — it cannot demonstrate it had no opportunity to be heard. Even if the City’s data was in a constant state of flux, the No Coalition has not shown that the Board did not adequately assess the information before it and come to a reasonable decision.
The No Coalition has not demonstrated it was not given notice and an opportunity to be heard at a meaningful time and in a meaningful manner on the information submitted by the City.
Allegations of secret meetings and brokering of deals with the fire district are unsupported.
The No Coalition next argues their rights to due process were violated by “secret meetings” held regarding the fire services contract. The group claims Johnson County gave the City “private instructions” about its wishes and concerns regarding tire fire services contract, and therefore “brokered” the contract between the City and Fire District.
Proof of the Board’s involvement in these alleged ex parte communications is imperative if the No Coalition is to persuade us on dris point. The Dictionary of Modem Legal Usage describes “ex parte” proceedings as those involving only one party, p. 340 (Garner, 2nd ed. 1995). Because the City and Fire District are not parties to this proceeding, the No Coalition must show the Board was involved in the communications.
There is some evidence that suggests Johnson County officials were communicating with the City and Fire District about some concerns. For example, at a Board meeting, a Board member spoke about “the direction” the County had given with regard to the negotiations between the City and Fire District. The No Coalition cites numerous instances in which the City’s attorney referred to concerns and wishes expressed by the County — which the No Coalition says suggests the County was “dealing behind the scenes” with the City and Fire District. On appeal, the Board actually acknowledges a meeting among the attorneys for the City, Johnson County, and Fire District in which it says the County’s attorney asked for “clarification” with regard to the fire services agreement.
Despite this, the No Coalition has not shown how these alleged communications between the County and City deprived it of notice or the opportunity to be heard. In the end, the fire services agreement was negotiated between the City and Fire District — two governmental entities — and was included in the record, which made it available for inspection by members of the public and the Board. And after the “Option 6” contract was added to the record, the No Coalition (via Orr) wrote the Board in response to the City’s “last-minute” negotiations with the Fire Department. The No Coalition was able to address its concerns about the agreement.
Going further, the No Coalition fails to acknowledge that the wishes and concerns apparently expressed by the Board to the City actually benefitted the County and the No Coalition’s positions. For example, the County complained that the compensation the City offered to pay the County was inadequate and the agreement did not address a partial annexation. On appeal, the No Coalition does not say how, as a result of these alleged ex parte communications, the fire services agreement harmed it. The No Coalition says the ex parte communications “profoundly changed” the annexation plan “to the tune of millions of dollars” but fails to support this statement with facts from the record. The No Coalition has not demonstrated its due process rights were violated as a result of alleged ex parte communications.
For its second claim, the No Coalition says the County’s procedure for communicating with it was “inconsistent and chaotic at best, and in fact facilitated or even legitimated off-the-record exchanges of information.” This claim is also unpersuasive.
Initially, we point out that the No Coalition has not shown any individual was unable to communicate with or contact the Board or unable to contribute information to the record as a result of the “chaotic” procedure followed by the Board. At the October 30, 2007, public hearing, the Chairman of the Board explained that if anyone wished to have correspondence included in the official record, he or she must submit the information no later than November 30 to the Board of County Commissioners, to the Clerk’s attention. The Chairman also explained that people could add information to the record, contact Commissioners, or participate in the public comment portion of Board meetings. Many members of the public, including the No Coalition, successfully added information to the record, contacted Board members, and spoke at Board meetings. The No Coalition cannot show their due process rights were violated as a result of the procedure.
For its final claim in this area, the No Coalition alleges there were a number of substantive ex parte communications between particular Commissioners and members of the public regarding the annexation.
First, a careful reading of the email exchanges cited by the No Coalition reveal they were not substantive. In one email, Commissioner John Segale thanked the resident for his thoughts and stated he believed his property taxes would decline as a result of the annexation. The email is two sentences long. In another email, Segale again thanked the resident for his thoughts and directed him to the County website. This email is also two sentences long. The only email of considerable length composed by Segale discussed his view of long-term development and community concerns in general. No information contained in the alleged ex parte communications between Segale and private citizens is meaningful.
Second, die record reveals that plaintiff Tom Watson engaged in these alleged ex parte communications himself. As the County points out on appeal, Kansas courts are not receptive to complaints about ex parte communications from those who have also participated in such communications. See City of Overland Park, 241 Kan. at 372.
To summarize, the No Coalition has not shown their rights to due process were violated as a result of ex parte communications concerning the fire services agreement, an inconsistent procedure for communicating with the County, or email communications between Commissioners and persons from the community. We do not see how the No Coalition was deprived of any due process rights. The No Coalition had more than ample opportunity to participate and be heard throughout this annexation proceeding.
We summarily deal with several alleged statutory violations.
Using an unpersuasive scattergun approach, the No Coalition claims 25 separate statutory violations by the City and the Board. Upon closer review of each, it becomes apparent that many of the claims essentially raise arguments that we have already analyzed and rejected. In addition, many of the allegations are- duplicates. To help organize the issues for purposes of analysis, we have numbered the allegations 1 through 25.
At this point, it is important to restate our standard of review on these claims. When reviewing an annexation decision, the function of the court is to determine whether the city had statutory authority to act and acted in accordance with that authority. City of Lenexa, 233 Kan. at 163-64. The test of municipality action is one of “substantial compliance” — which means compliance with respect to the essential matters necessary to assure every reasonable objective of the annexation statutes. 233 Kan. at 164.
In allegations 1, 2, 3, 4, 11, 14, and 24, the No Coalition makes the same argument. The group contends the annexation did not comply with the law because the City’s initial plan changed many times — an argument we have previously addressed and rejected.
In allegations 5 and 6, the No Coalition says the City’s plan must provide the estimated cost of the annexation — and this information was not provided. To the contrary, the City’s plan did include tables for estimated ongoing operating costs for 3 years, estimated revenues, estimated one-time costs, and costs of capital projects. The plan also had a section titled “Cost Impact on Residents of Area Proposed to be Annexed.” And this section set forth particular costs for residents, such as the cost of cable television services and storm water utility fees. Although the City’s plan may not have discussed all costs and revenues in the detail desired by the No Coalition and may not have reflected changes in the excise tax (as noted by the No Coalition), the City’s information substantially complied with the pertinent statute.
In allegation 7, the No Coalition says the plan must state a method for financing the extension of services, but here the City’s plan did not include items such as the “belated extra millions to the Fire District” and the effect of a partial annexation. In this apples and oranges argument, the No Coalition compares dissimilar items. The method of financing is not the same as the amount of financing. The plan correctly indicated the method of financing fire protection services.
In allegations 8 and 10, the No Coalition claims the required timetable for extension of services fails with regard to fire services. It is unclear what the No Coalition is complaining about here. The City’s plan states that the timetable for extension of fire protection services is immediate. The City’s later negotiations and contract with the Fire District did not change the City’s intent to immediately provide fire services in the event of annexation.
In allegation 9, the No Coalition complains that the City’s plan does not sufficiently address how fire protection services will be maintained. The plan does, in fact, discuss maintenance. Although the plan may not have discussed maintenance in the sort of detail desired by the No Coalition, there was substantial compliance with the statute.
In allegation 12, the No Coalition says the City failed to give proper notice to the Mackeys. As we noted in our recitation of the facts, notice of the public hearing and the required materials were sent to the Mackeys via certified mail on September 24, 2007. Virginia Mackey signed, acknowledging receipt of this mailing, on September 25,2007, over 1 month prior to the public hearing. The statutory notice requirement was substantially complied with. Frankly, we doubt that the No Coalition has standing to complain about a claimed lack of service on another individual.
Allegations 13 and 22 relate to the No Coalition’s jurisdictional argument, which was previously rejected. Allegation 15 relates to the No Coalition’s due process arguments, which were rejected above. Allegations 16, 17, 18, and 25 pertain to the No Coalition’s arguments that the Board based its decision on the wrong plan, the wrong evidence, and the wrong area — which we have already rejected.
In allegation 19, the No Coalition complains about the statutory requirement that the County consider the tax impact upon the property annexed and the City’s property. For support, the No Coalition sets forth a long list of somewhat disconnected arguments that have either been rejected above or are unsupported with record citations. Suffice it to say the City’s plan included two tax sections titled, “Net Tax Impact on Residents in the Area Proposed to be Annexed” and “Effect of Proposed Annexation” on Aubry Township, the Fire District, and the County.
In allegation 20, the No Coalition complains that the City’s plan was “woefully lacking” with regard to information about the Fire District. But in fact, the City’s plan included four full pages of discussion about fire protection services and indicated the City planned to negotiate and enter an intergovernmental service agreement with the Fire District. The No Coalition does not really say what information is lacking except to complain about the dollar figures related to a partial annexation.
In allegation 21, the No Coalition alleges the County must consider petitions for incorporation, yet a petition that was presented was never the subject of any public hearing. The Board’s decision, however, discusses the petition for incorporation. Other than saying there was no public hearing or “joint discussion” on the matter, the No Coalition has not shown the Board did not consider the petition.
In allegation 22, the No Coalition renews the previous argument that the County cannot place future conditions upon an annexation — an argument rejected above as unsupported with legal authority.
The No Coalition has not demonstrated that the City and Board failed to substantially comply with tire annexation statutes. Instead, the voluminous record in this case reflects the City provided a substantial amount of detailed, thoughtful research on the proposed annexation, and the Board properly considered all the information before it.
Conclusion
After examining the record, we can find no fault with what the Board did. This massive decision, with far reaching implications, was made by two elected governing bodies, first the City and then the Board. We will not substitute our judgment for the Board’s. The Board substantially complied with all legal procedures. At the end of the day, this was a decision for the elected Board of County Commissioners of Johnson County, Kansas, to make. We will neither alter it nor set it aside.
Affirmed. | [
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The opinion of the court was delivered by
VALENTINE, J.:
This action was commenced by W. A. Randolph and A. G. Randolph, partners as Randolph & Randolph, against Frank Maier, before a justice of the peace, and, after judgment, the case was appealed to the district court, in which court it was again tried, before the court and a jury, and judgment was rendered in favor of the plaintiffs and against the defendant, for the sum of $144, and for costs. The defendant, as plaintiff in error, now brings the case to this court.
I. The case was tried in the district court upon the bill of particulars filed in the justice’s court, which alleges, in substance, as follows: The plaintiffs owned a two-year-old thoroughbred Shorthorn bull, and the “defendant, by his employé and agent, without the knowledge and consent of the said plaintiffs, killed said bull; that said plaintiffs were damaged by the killing of said bull, in the sum of $250.” We think the bill of particulars states a cause of action.
II. On the trial, the plaintiffs, for the purpose of enhancing their damages, attempted to prove that the bull had an excellent pedigree, and for this purpose they introduced in evi- deuce, by the permission of the court, but over the objections and exceptions of the defendant, a little book issued by private individuals as an advertisement of animals which they, the individuals, had for sale, and containing what purported to be a pedigree of the plaintiffs’ bull. The book, as read in evidence, proved that the plaintiffs’ bull was of the very best Shorthorn blood, both upon his father’s and mother’s side. We think the court below erred in permitting this book to be introduced in evidence. It was not original evidence, but merely a printed statement of what the parties who published it said about the bull’s pedigree. It was merely hearsay testimony. It is admitted that the bull in the present case was not registered in either the American Herd Book or the Canadian Herd Book, and neither of such herd books, nor any herd book, was offered in evidence.
III. One of the plaintiffs wras permitted to testify in narrative form, and not in answer to questions put to him. This is permissible within the discretion of the trial court, and we do not think that the trial court abused its discretion in this ■case.
IV. A witness cannot usually be cross-examined upon matters brought out for the first time upon the cross-examination, and which are not justified by the examination-in-chief.
V. We think the evidence showed liability on the part of the defendant. A principal, or master, or employer, is usually liable to third parties for the acts or negligence of his agent or servant while acting within the scope of his employment. Here the defendant instructed his servant to go to a ■certain place at a certain time and kill a beef. The servant went to such place, at such time, and, finding no animal there except the plaintiffs’ bull, killed the bull, skinned him, dressed him, and hung his carcass up in the slaughter-house as a beef. Evidently the servant was honestly attempting to obey the master’s order, and evidently the servant thought that he was doing so; but he was honestly mistaken. A libeef,” according to Webster’s Dictionary, may be either a bull, a cow, or an ox. The servant was all the time acting for the master, and he killed this bull while in the execution of his master’s business, and within the scope of his employment; and therefore his master is liable.
"VI. It is claimed, however, that the plaintiffs in this action were guilty of contributory negligence; that they themselves wrongfully placed the bull in a corral, or pen, connected with the slaughter-house, where no person except the defendant had any right to place animals, where no animals except such as were brought there for the purpose of being slaughtered should have been placed, and where the bull was liable to be killed as a beef. We hardly think that we are called upon to decide this question; for if the plaintiffs’ evidence is true, and probably it is, there is no foundation for this claim of the defendant. According to the plaintiffs’ evidence, they had the entire primary right to the place where the bull was killed; they owned it, and the defendant, at most, had only a secondary right thereto, and that right was merely by the sufferance of the plaintiffs, a mere license; and this secondary right or license was not exclusive, but in subordination to the plaintiffs’ superior right; and others as well as the defendant were allowed to put animals in such corral or pen. Under the facts as shown by the plaintiffs’ evidence, and as would, in all probability, be found by the jury, we would think that the defendant was liable. A master and his servants must know the master’s property, and must not mistake other people’s property for his to the injury of the other people.
For the error committed by the court below in permitting the little book above mentioned to be introduced in evidence, the judgment of the court below will be reversed, and a new .trial ordered.
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 appeal by the plaintiff is a tort action for damages for personal injuries by reason of negligence of the defendant was taken from the judgment and order of the trial court sustaining defendant’s motion for summary judgment on the basis that plaintiff’s sole remedy is under the workmen’s compensation act.
Plaintiff’s counsel admits that if plaintiff is a statutory employee as defined in G. S. 1949, 44-503 (a) and (d), now K. S. A. 44-503 (a) and (d), then plaintiff cannot bring this action for damages as an ordinary third party tortfeasor.
The facts are not in dispute or argued. Plaintiff was employed by Fruin-Colnon Contracting Company as a labor foreman in defendant’s plant in Kansas City, Kansas, during construction of an extension and addition to its Tide Department. To expedite plaintiff’s travel from one location to another on defendant’s premises he was furnished with a bicycle by Fruin-Colnon. Defendant used a four-wheel fork lift on its premises which had a front end fork with a wooden pallet and on July 9, 1962, the day of the accident, a heavy two-wheel truck was being transported thereon. It was alleged that through the negligence of defendant’s operator of the fork lift, the two-wheel truck was dislodged from the pallet and fell upon and against plaintiff while he was passing by on the bicycle, causing him to sustain severe injuries. His injuries are not presently in dispute and will not be detailed herein.
The trial court held that plaintiff was a statutory employee of defendant under the workmen’s compensation act and sustained defendant’s motion for summary judgment. Plaintiff appeals from that finding and order.
The sole question presented for appellate review is whether at the time of his injury plaintiff was an employee of defendant and would be subject to and limited by the following provisions of 44-503 (subcontracting):
“(a) Where any person (in this section referred to as principal) undertakes to execute any work which is a-part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of this act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed. . . .
(d) This section shall not apply to any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in or about the execution of such work under his control or management.”
Plaintiff in support of his contention he was not such a statutory employee, as above defined, cites Durnil v. Grant, 187 Kan. 327, 356 P. 2d 872; Henderson v. Sutton’s Food City, 191 Kan. 145, 379 P. 2d 300.
Defendant relies on Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P. 2d 239.
A number of arguments and authorities are submitted by counsel but the most pertinent and controlling appear to be the three above-cited cases.
The statute in question which would make plaintiff a statutory employee has been heretofore set out.
In the Lessley case, determined by motion for judgment on pleading ordered sustained, cited and relied on by defendant, it was stated:
“In construing such statute we have held, so repeatedly that there can no longer be any question regarding the rule, that a principal is hable for injury sustained by workmen of an independent contractor when the accident arises out of and in the course of the the principal’s trade or business. Indeed we have said the very purpose of such section is to give the employees of such contractor a remedy against the principal and to give its provisions any other construction would simply mean an employer subject to the compensation act could escape liability for injuries received by persons in carrying on his trade or business by the simple expedient of hiring an independent contractor to do the work and letting him employ and direct the workmen. [Citations] It is, of course, elementary that the statute is equally applicable to employees of subcontractors. [Citation] Appellant recognizes this rule and admits that the principal cannot be held liable under the common law for the negligent injury of an employee of an independent contractor where the work being performed under the contract is part of the trade or business of the principal. However, in fairness, it should be here noted he insists the principal is not relieved from liability under the common law simply by reason of the fact the work of such a contractor may be required to equip the principal’s trade or business for operation.” (p. 204.)
It should be noted that in the admitted facts in the pleadings of the Lessley case, we find in regard to the Kansas Power and Light Company that,
‘It was authorized to do business as a public utility and ... by virtue of the articles of incorporation issued it by the state of Kansas it was authorized ... to do all things necessary for the conduct of a general electric . . . business, also to build, construct . . . power plants, power houses . . .” (Our emphasis.) (p. 199.)
In the Durnil case the claimant’s immediate employer, Smith, delivered fruit and produce to retailers and restaurants. On March 31, 1958, claimant was injured and totally disabled while riding in Smith’s delivery truck due to Smith’s “blacking out” during deliveries to Smith’s customers.
Respondent, Grant, was a wholesale fruit and vegetable distributor selling to retailers, sub-jobbers, other wholesalers and the general public and had his own salesmen who only solicited orders. Grant also had his own delivery trucks and drivers. Smith received orders for produce at his home or by a telephone to which he had access at Grant’s place of business. Smith was also furnished a desk by Grant to write up orders and to transact business. Each morning Smith would go to Grant’s with his truck, where he was furnished special dock space, and he and claimant would go into the warehouse and obtain fruit, etc., to fill the orders. The items were wrapped by Smith and claimant with Grant’s paper and twine. No assistance or supervision were given by Grant’s employees. House tickets were furnished Smith by Grant. The wrapping process was done alongside Grant’s employees. Grant furnished Smith with the same price list his employees used and Smith did not pay Grant for the items when they were received by Smith.
Sometimes Smith would have to obtain items from other produce houses but their facilities were available to Smith. Employees even loaded the items into the truck at the other houses. When Smith could not make his deliveries, Grant’s employees would make them.
In the Durnil case (p. 337) the trial court found that claimant was entitled to recover compensation under 44-503 (a), and in a well-reasoned opinion, this court affirmed that finding. The same statute was also involved in the Henderson case, where on appeal to this court claimant in a workmen’s compensation case sought to reverse the trial court’s judgment denying compensation.
The facts in the Henderson case were not in dispute. In 1949 George Irving orally contracted with Sutton to remove trash and rubbish from the latter’s grocery store. Payment was by the month and Sutton, without notice, could terminate the agreement at any time. Sutton never exercised direct supervision or control over Irving’s business operation. Irving was required to pick up trash as often as necessary which was normally every day. Irving was an independent businessman engaged in picking up trash from numerous businesses in Topeka. In 1959 Irving sold his trash route to William Miller who continued Irving’s style of operation. Miller was never subject to direction, supervision or control by Sutton. Prior to July or August, 1961, Sutton had no knowledge of the sale by Irving to Miller. On May 27, 1961, Henderson, who had been helping Miller out “quite a bit” was engaged by Miller to pick up trash on Sunday morning, May 28, at Sutton’s which was his only pick up on that day. En route to Sutton’s Henderson “blacked out” and was injured in a single vehicle accident. Henderson’s use of the Miller truck was unlimited, and he was free to do as he desired with it.
In another well-reasoned opinion in the Henderson case, we said:
“Insofar as the record discloses hauling trash is not work which the manager of a grocery super market would ordinarily have done through employees of the business.” (p. 148.)
For this, and many other reasons, it was held that Henderson’s immediate employer was an independent contractor and the claimant was not a statutory employee of Sutton under 44-503 (a).
In the Henderson case we found that the classification of a trash hauler was a separate and independent business operation.
Defendant’s Ohio charter stated that it was formed for the purpose of,
“. . . Manufacturing, refining or otherwise treating, buying, selling and dealing in soaps, candles, oils, greases, fats, glycerine and other kindred substances and products, including all by-products and other materials and products arising from or accompanying the manufacture or refining of any or all of such articles, and of acquiring, holding and disposing of all property, real, personal and mixed, necessary or convenient for carrying on said business in said State of Ohio, and also in any or all of the other states and territories and possessions of the United States and in foreign countries.”
Definitions for trade or business: (1) Websters New International Dictionary (2nd Edition)— of the 13 definitions, the seventh is most appropriate:
“Act or business of exchanging commodities by barter, or by buying and selling for money, commerce; traffic; as, international trade; adverse influences on trade; a slump in the cotton trade. Trade, in this sense, comprehends every species of exchange or dealing, either in the produce of land, in manufactures, in bills, or in money; but it is chiefly used to denote the barter or purchase and sale of goods, wares, and merchandise, either by wholesale or retail.”
(2) Blacks Law Dictionary:
“The act or business of exchanging commodities by barter; or the business of buying and selling for money; traffic; barter.”
(3) Kansas authority: (a) Gray v. Sedgwick Co., 101 Kan. 195, 165 P 867 (1917). “Business” is synonymous with “calling,” “occupation” or “trade” and means any particular occupation or employment engaged in for a livelihood or gain.
(b) Lehman v. Grace Oil Co., 151 Kan. 145, 154, 98 P. 2d 430 (1940). The court cited with approval Horrell, et al. v. Gulf & Valley Cotton Oil Co., 15 La. A. 603, 131 So. 709, 712 (1931).
“. . . A manufacturing concern upon organization, may contract with an independent contractor for the erection of its factory building without retaining liability under the Compensation Act to employees of the independent contractor who undertakes the construction. It is no part of the trade, business, or occupation of the manufacturing concern to erect its factory building. Its business is to operate it after its erection.”
(4) Other cases: (a) Massolini v. Driscoll, 114 Conn. 546, 552, 159 At. 480 (1932).
“‘Trade’ commonly connotes the buying, selling or exchanging of commodities. ‘Business,’ however, is a much broader term. In Easterbook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 294, 82 Atl. 561, Justice Prentice stated: ‘The word “business” is one which is used with widely variant meanings. It is used broadly to signify “that which . . . engages or [occupies] time, attention, or labor, as a principal serious concern or interest.”
(b) King v. Palmer, 129 Conn. 636, 641, 30 A. 2d 549 (1943).
“If the work is of such a character that it ordinarily or appropriately would be performed by the principal employer’s own employees in the prosecution of its business, or as an essential part in the maintenance thereof, it is a part or process of his work.”
We are convinced that in view of what has been stated and discussed, that the Henderson case was controlling here. Insofar as the record discloses the construction of the Tide Building was not work which the manager of the Proctor & Gamble soap company would ordinarily have done through employees of the business of manufacturing soaps and detergents. It was Fruin-Colnon Contracting Company’s business to construct the building for the Tide addition on the Proctor & Gamble plant and it was the latter’s business to operate the Tide addition after its erection.
The judgment is reversed with the directions to the trial court to overrule defendant’s motion for summary judgment and proceed with the tort action for damages for personal injuries by reason of negligence of the defendant in accordance with the views expressed herein.
Parker, C. J. and Price, J., dissenting. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal instituted on behalf of the Denison Mutual Telephone Company and the Mayetta Mutual Telephone Company by and through their respective presidents, Wilbur T. Martin and Charles Renfro, Jr., plaintiffs (appellants), seeking equitable rescission of written contracts for the sale of the companies on the ground of alleged false representations made by Howard Kendall, defendant (appellee), in the purchase of the property.
Roth actions were consolidated and tried to the district court. The court made findings of fact and conclusions of law and entered judgment in favor of the defendant, from which plaintiffs appeal.
The pertinent facts may be summarized as follows: In February 1962, J. M. Caplinger, acting as' attorney for both Mayetta Mutual and Denison Mutual, commenced negotiations with Kendall for the sale of the companies. Negotiations continued until March 29, 1962, at which time Mayetta Mutual, through its officers, entered into a contract with Kendall whereby he agreed to purchase all properties owned by the company and to assume responsibility for the operation and maintenance of the telephone exchange at Mayetta. On June 1, 1962, a similar contract was executed between the Denison Mutual Telephone Company and Kendall. All of the negotiations which lead to the sales took place between Kendall and Caplinger, who drafted both contracts.
Prior to executing the contracts, Kendall contacted an accounting firm, Shumway J. Bird & Co., for the purpose of obtaining a loan to make the purchases. He subsequently received through the mail a check in the amount of $1,000 from Shumway Bird, and two checks in the amounts of $1,000 and $8,000 from A. L. Wheeler, an attorney who maintains law offices in Washington, D. C. Kendall used these funds to pay for the exchanges.
Subsequent to purchasing the exchanges Kendall filed with the state corporation commission applications asking for approval of the sales. After a hearing held on June 25, 1962, the commission approved the sales, and issued an order authorizing Kendall to operate a public telephone utility in each exchange area. On June 20 each company executed and delivered to Kendall a bill of sale and a warranty deed conveying all assets except cash on hand, and about July 1, 1962, Kendall assumed operation of both exchanges.
Sometime during 1962 Kendall also commenced negotiations for a loan with Stromberg-Carlson, a division of General Dynamics Corporation, to cover acquisition costs of the Mayetta and Denison exchanges and to finance conversion of each exchange to the dial system. These negotiations culminated in a letter of commitment on May 2, 1963, which was subsequently extended to December 1, aggregating a total amount of $215,000, $180,000 of which was to be used to defray the costs of acquiring and rehabilitating the exchanges. The letter of commitment, however, expired, and the record indicates that as of July 22, 1964, Kendall did not have a loan commitment to finance conversion of the exchanges.
During the negotiations with Caplinger, Kendall represented that he was purchasing the exchanges as an individual and would personally assume responsibility for their operation and mainte nance. However, on December 18, 1962, Caplinger was called by Wheeler and informed that Kendall had used Wheeler’s money to make the purchases and that Wheeler was, in fact, the owner. Caplinger was unable to contact Kendall until December 27, .at which time Kendall indicated he considered the funds advanced by Wheeler to be a loan and that he was meeting his accountant the next day in Wichita to clear up the matter. Thereafter, Kendall and Wheeler entered into a compromise settlement, whereby Kendall agreed to pay Wheeler $12,500 for his claim to beneficial ownership of the exchanges. Wheeler received the $12,500 payment the following May or June.
On January 16, 1963, plaintiffs mailed Kendall a notice of rescission for each sales contract and offered to tender back the purchase price of the two exchanges. They asked Kendall to return the assets of the exchanges so as to restore all parties to the status existing prior to the execution of the contracts, but he refused.
Plaintiffs commenced the instant action by filing their amended petitions on March 26, 1963, alleging in substance that Kendall had falsely represented that he' was purchasing the exchanges as an individual and would move into the Mayetta-Denison area so as to provide local ownership, supervision and maintenance. It was further alleged that Kendall had, in fact, purchased the exchanges for an unknown third party, A. L. Wheeler, who was also named as a party defendant in the petitions.
Kendall’s answers contained specific denial of the alleged false representations. To each petition Wheeler filed an answer in which he disclaimed any right, title or interest in or to the exchanges.
On the issues as joined, the trial court entered findings of fact on July 22, 1964, among which were:
“11. While the evidence discloses that A. L. Wheeler advanced funds through Shumway Bird & Company to defendant Kendall for the purpose of such exchanges, and the court so finds, there is no clear and convincing evidence that defendant Kendall knew or should have known that Wheeler intended to be the purchaser himself. Defendant Kendall testified that he had had no contact whatsoever with nor was he acquainted with Wheeler at the time of the acquisition of plaintiff exchanges. Such testimony was not refuted by any evidence of plaintiffs and the Court so finds such to be the fact.
“12. The Corut finds that defendant Kendall did represent that he would move'into the area personally during the conversion to dial system and that he would personally supervise such. While there was some evidence offered tending to show that defendant Kendall had made statements to the effect that he and his wife desired to move back into this area, there was not the clear and convincing evidence necessary from which the Court could find a false representation in this regard.”
Upon entering conclusions of law consistent with its findings, the court specifically concluded that plaintiffs had failed to establish by a preponderance of the evidence the alleged false representations.
Plaintiffs contend there was insufficient evidence to support the trial court’s finding that Kendall did not falsely represent he was purchasing the exchanges as an individual.
Preliminary to discussing this contention, it should be noted that in an action springing from alleged false representations, an appellate court, by force of circumstances usually attendant upon a trial of such an action, must give considerable weight to the findings and conclusions of the trial judge who had an opportunity to observe the demeanor of the principals on the witness stand. Moreover, it has long been settled that if there is present in the record substantial competent evidence in support of the findings of the trial court, it is beyond the province of this court to disturb the judgment on appeal. (Fine v. Neale Construction Co., 186 Kan. 537, 352 P. 2. 404; Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122.)
Kendall testified his first conversation with Wheeler was during the latter part of October or the first part of November 1962—four or five months after the sales transactions were completed. A careful search of the record discloses no evidence whatsoever to refute the above testimony, nor is there anything to indicate Kendall had knowledge of Wheeler’s existence prior to Kendall’s assuming operation of the exchanges. The first reference in the record concerning Wheeler relates to a check mailed by him to Kendall which was dated July 2, 1962, in Washington, D. C., approximately one month after the second sales contract was executed. In view of the foregoing, we have no hesitation in holding there was ample evidence to support the trial court’s finding.
Plaintiffs also contend the trial court’s finding that Kendall did not falsely represent he would move into the Mayetta-Denison area was contrary to the evidence. We do not feel compelled to detail all of the evidence; it will suffice to say that Kendall’s own testimony was sufficient evidence to support the court’s finding. A general finding determines every controverted question of fact on which substantial evidence was introduced and raises a presumption that the trial court found all facts necessary to support the judgment. It is the duty of the trier of the facts, not the appellate court, to weigh conflicting evidence; and the appellate court, in determining the sufficiency of evidence to support findings of fact, is required to view all testimony in the light most favorable to the prevailing party. (Kramer v. Farmers Elevator Co., 193 Kan. 438, 393 P. 2d 998; International Motor Rebuilding Co. v. United Motor Exchange, Inc., 193 Kan. 497, 501, 393 P. 2d 992.) This court is concerned only with whether or not there was any substantial competent evidence to support the trial court’s finding and conclusion that plaintiffs failed to sustain the burden of proof that Kendall made any false representations to justify the equitable rescission of the contracts of sale in question, and we find there was.
It is also contended by the plaintiffs that the trial court erred in refusing to consider whether or not Kendall had properly complied with the orders and schedules of the state corporation commission. They maintain that the telephone utility service in the Mayetta-Denison area was inadequate and that certain rates charged by Kendall were excessive. A short answer to this contention is that plaintiffs’ alleged grievances must first he addressed to the corporation commission.
In adopting the public utilities act, K. S. A., chapter 66, the state reserved the right to regulate the public utility business. The state corporation commission is given full power, authority and jurisdiction to regulate service, prescribe rates and order a continuance of service at such prescribed rates. (City of Wilson v. Electric Light Co., 101 Kan. 425, 166 Pac. 512; Kansas Power & Light Co. v. City of Great Bend, 172 Kan. 126, 130, 131, 238 P. 2d 544.) Thus, parties who complain that a public utility has failed to furnish adequate service or has charged excessive rates should invoke the relief provided by the public utilities act before resorting to the courts. (City of Parsons v. Water Supply and Power Co., 104 Kan. 294, 178 Pac. 438.)
Other contentions raised by plaintiffs have been examined and found to be without merit sufficient to justify reversal of the judgment. The judgment of the trial court is affirmed.
Fatzek, J., dissents. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from an order of the district court dismissing the appellant’s appeal from the order of final settlement of the decedent’s estate entered by the probate court on August 2, 1963.
The appellant, Dorothy M. Dumback Hager, a resident of the state of Oregon, is the granddaughter and only heir at law of Kate Dumback, who died testate on June 5, 1962. On the following day, a petition was filed in the probate court of Republic County, Kansas, seeking to have the decedent’s last will and testament admitted to probate. The probate court set the petition for hearing on July 10, 1962, and ordered that notice be given pursuant to G. S. 1949, 59-2209 (now K.S.A. 59-2209).
On June 11, 1962, counsel for petitioner filed his affidavit of the mailing of the notice of hearing to each of the seven legatees and devisees named in the decedent’s will, including the appellant. On June 22, 1962, the publisher filed his affidavit of publication showing that notice of hearing had been duly published on June 7, June 14, and June 21, 1962. On July 10, 1962, the probate court approved the publication and service of notice of hearing and entered its order admitting the decedent’s last will and testament to probate. The appellant did not enter an appearance at this hearing.
Due administration of the estate was had, and on July 10, 1963, the executor filed a petition for final settlement. On the same day, the probate court set the petition for hearing on August 2, 1963, and ordered that notice of hearing be given pursuant to K. S. A. 59-2209. The notice of hearing was duly published and proof thereof together with proof of service were duly filed.
On August 2, 1963, the probate court approved the publication and service of the notice of hearing and entered an order of final settlement of the estate, assigning the decedent’s property in accordance with the terms and provisions of the last will and testament. The appellant entered her appearance at the hearing by her attorney, but filed no pleading.
Thereafter, the appellant perfected an appeal to the district court from the order of final settlement and filed an answer alleging in substance that the notice of hearing on the petition to probate the decedent’s will was not given as required by the order of the court, or as required by K. S. A. 59-2209; that the purported order entered by the probate court attempting to admit the decedent’s will to probate was without proper notice and that the same was void and of no effect; that no valid order had ever been entered by the probate court admitting the decedent’s will to probate and because thereof, all property owned by the decedent upon her death, passed to the appellant under the law of intestate succession; and that the order of August 2, 1963, attempting to make final settlement upon the theory that the decedent’s will was legally admitted to probate was likewise void and all property owned by the decedent at her death descended to and was legally owned by the appellant and title thereto should be assigned to her as the sole and only heir at law of the decedent.
The executor of the estate filed a motion to dismiss the appeal, which was sustained by the district court upon the ground that the order admitting the decedent’s will to probate was at most voidable and not void, and since no appeal was taken from that order and no attack made upon it until months later, it could not then be questioned by a collateral attack.
The appellant frankly concedes that the action is a collateral attack upon the order admitting the will to probate, and contends that order is void because of failure to give proper notice of the hearing of the petition to probate the will. She argues that the hearing of the petition to' probate the will was set for July 10, 1962, and notice of the hearing was ordered to be given pursuant to 59-2209; that notice of the hearing was published Juñe 7, June 14, and June 21, 1962, and that the hearing was set for some nineteen days after the last publication of tibe notice, or some five days beyond the time provided in K. S. A. 59-2209 which reads in pertinent part: “. . . The date set for the hearing shall not be earlier than seven days nor later than fourteen clays after the date of the last publication of notice.” (Emphasis supplied.)
In sum, it is the appellant’s contention that when notice was not given at such time as to permit the hearing to be had within the fourteen days after the date of the last publication of notice, such notice was fatally defective and that any order based on such defective notice was void and of no effect.
What was the defect in the notice which appellant claims is fatal to the validity of the order admitting the will to probate? We think there was none. The appellant raises no objection to the admission of the will to probate, nor does she contend that document lacked the essential elements of a valid last will and testament. She raises no objections to any of the proceedings to administer the estate. She filed no objections to the acts of the executor on the petition for final settlement. It is apparent that the sole error upon which she relies to void and set aside the order admitting the will to probate and the order of final settlement, is that the notice of hearing of the petition to admit the will to probate should have been rejected because the probate court was without jurisdiction to hear the same. This sweeping conclusion is reached because, it is claimed, the notice of hearing was defective.
The notice of hearing to probate the will was properly published on the 7th, 14th and 21st of June, 1962, and advised the appellant of everything which the statute required the notice to contain. The only defect in the notice was that it gave the appellant five more days to appear and answer than the statute contemplates. She did not appear on the date fixed in the notice, nor did she appear on July 5, 1962, which would have been the fourteenth day after the last date of publication. The probate court examined the published notice, the proof of publication, and the affidavit of mailing of notice, and approved the same. We think the notice of hearing duly and regularly published for three consecutive weeks and served upon the appellant, fixing the hearing of the petition to probate the will on July 10, 1962, was a palpable irregularity, but it cannot be regarded as a fatal defect. In no respect could the appellant possibly have been prejudiced by the time in which she might answer the petition and attend the hearing. The defect did not go to the jurisdiction of the court over the subject matter, or render the notice of hearing void. At most it was only irregular and voidable. While not factually in point, see Young v. Newbold, 114 Kan. 86, 89, 217 Pac. 269; Foster v. Motley, 114 Kan. 812, 815, 220 Pac. 1036, and Allbritten v. National Acceptance Co., 183 Kan. 5, 10, 11, 325 P. 2d 40.
We are of the opinion the district court did not err in dismissing the appellant’s appeal from the order of final settlement, and we affirm that order. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a proceeding instituted pursuant to K. S. A. 60-1507 in which the district court of Wyandotte County, Kansas, denied the petitioner’s motion for discharge from the Kansas State Penitentiary. Appeal has been duly perfected.
The primary question presented by the petitioner on appeal is whether he knowingly and intentionally entered a plea of guilty to a charge of burglary and larceny upon which he was sentenced. Other points incidental thereto will be summarily treated.
On the 13th day of March, 1964, the petitioner was arrested and charged in the city court of Kansas City, Kansas, with four counts of forgery. Being unable to post bond, the petitioner was committed to the Wyandotte County jail to await preliminary hearing.
On the 18th day of March, 1964, the petitioner was rearrested, and on the following day charged in the city court with three counts of burglary and larceny. Unable to post bond he was recommitted to the Wyandotte County jail to await preliminary hearing on these charges.
The judge of the city court appointed Lawrence Long, an attorney, to represent the petitioner, an indigent, at the preliminary hearing in the forgery case. The judge of the city court also appointed Anthony Russo, an attorney, to represent the petitioner at the preliminary hearing in the case charging him with burglary and larceny.
On the 31st day of March, 1964, the petitioner waived preliminary hearing on the forgery charges and was bound over to the Wyandotte County district court for trial. An information was subsequently filed charging the petitioner with four counts of forgery, and this matter was designated in the district court as Case No. 18,371-CR.
On the 10th day of April, 1964, the petitioner waived preliminary hearing on the burglary and larceny charges and was bound over to the Wyandotte County district court for trial. The county attorney subsequently filed an information charging the petitioner with two counts of burglary and larceny, and this matter was designated in the district court as Case No. 18,375-CR.
On the 1st day of June, 1964, the Hon. Wm. H. McHale, judge of division No. 4 of the district court of Wyandotte County, appointed Anthony Russo, a member of the Wyandotte County bar, to represent the petitioner in both cases.
On the 10th day of June, 1964, the petitioner, Mr. Russo, and the deputy county attorney appeared before Judge McHale, at which time the prosecution dismissed all four counts of forgery in Case No. 18,371-CR, and also dismissed the second count of burglary and larceny in Case No. 18,375-CR. The remaining count of the information in Case No. 18,375-CR charged the petitioner with the theft of a hi-fi record player from the home of Gerald Cartwright, a minister, on the night of March 11, 1964. The court then directed that such remaining count of the information be read aloud to the petitioner. This count charging burglary and larceny was then read in open court to the petitioner, whereupon he entered a plea of guilty to the charge. At this crucial point in the criminal proceedings against the petitioner the transcript of the trial discloses the following:
“The Court: Mr. Webb, you have three alternatives: You can plead not guilty, you can plead guilty or you can stand mute and not plead anything, in which event the Court will enter a plea of not guilty for you. What do you desire to do?
“Defendant Webb: I am guilty of the charge.
“The Court: You are guilty of the charge?
“Defendant Webb: Yes, sir.
“The Court: You are guilty and you are pleading guilty?
“Defendant Webb: Yes, sir.
“The Court: No promises and no threats?
“Defendant Webb: No, sir.
“The Court: Okay, defendant pleads guilty. Okay, do you have any reason to suggest why sentence should not be imposed upon you, Raymond?
“Defendant Webb: Well, all I know is just guilty; that is all.
“The Court: How old are you?
“Defendant Webb: I am 29, sir, at the present time.
“The Court: 29?
“Defendant Webb: Yes, sir.
“The Court: You live here in Wyandotte County?
“Defendant Webb: Yes, I have a family, wife and two children and we are not together right now at the present time.
“The Court: How did you happen to get into this trouble then?
“Defendant Webb: Well, working on a job here for this man. I got a business started and I knowed the business pretty well and he let me go and so I tried to get back even with him on the checks but these hi-fi record player—they were from my pastor. I lived with them for three and a half years and there’s nobody actually seen me do anything. I just pled guilty myself to the charge after it was taken to the city and I turned myself in. I called up Boston Daniels and told him to come out and pick me up; that is all; but as far as getting away or—I wasn’t trying to hide or nothing like that. He didn’t realize I had the record player at my girl’s house when he called me up. I told him I had the record player but by that time the next day the police were looking for me; but I definitely stated when he called me I had the record player—told him I’d bring it back that night, but I went to work and didn’t have a chance to bring it in. So the police picked me up the next day.
“The Court: Well, you have pled guilty to the charge of burglary in the second degree and on that you will be sentenced to not less than 5 nor more than 10 years confinement at the Kansas State Penitentiary at Lansing. On 21-524 which is the commission of larceny in connection with the burglary you will be sentenced to not exceeding 5 years. Both sentences to run concurrently. Are you going to make application, you said?
“Mr. Russo: Yes, Your Honor, make an application for parole. Also for the purposes of the record at this time I’d like to state that I have represented the defendant since the preliminary hearing stages and that I have conferred with him at several occasions in the Wyandotte County jail, and that I have advised him he has been entitled to a jury trial if he did want it.
“The Court: You are hired or appointed?
“Mr. Russo: No, I have been appointed. I was appointed in the basement, also.”
After the petitioner was committed to the State Pentitentiary at Lansing, Kansas, he wrote a letter to Judge McHale (date not disclosed by the record) requesting a parole. The body of the letter reads:
“I am writing this letter, regarding to re-application for a parole, if the honorable court would considered it. I am a family man, my wife and I are separated at this time, if I could be reinstated for application for a parole, it would do my wife, children and I some gooded. I entered a plea of guilty to the crime I committed to the Honorable court, because I realized of the crime I committed. Now while I’m in custody at the Kansas Penitentiary, I realize more of the serious crime, I have committed, and is asking for mercy and leniency of the Honorable court to reinstate me application for parole.”
Thereafter and on the 26th day of October, 1964, the petitioner filed his motion to vacate and set aside the judgment and sentence pursuant to K. S. A. 60-1507. The court appointed Clifford T. Mueller, a member of the Wyandotte County bar to represent the petitioner, an indigent, in the hearing on this motion. The motion was argued to Judge McHale in the district court of Wyandotte County on the 20th day of November, 1964, and was ' overruled. The petitioner was not present in court at the time the motion was presented and argued.
Thereupon appeal was duly perfected to this court by the petitioner through his court-appointed counsel, Mr. Mueller, who has continued to represent him on appeal in this court.
The petitioner’s application for discharge in this 1507 proceeding is on a form provided by the district court of Wyandotte County and was prepared by the petitioner himself. The grounds upon which he relies for discharge are rather vaguely stated, but, in general, charge that he was not adequately represented by counsel in the criminal proceedings. He contends that he did not waive preliminary hearing in Case No. 18,375-CR, and did not have any knowledge that the hearing was to be waived.
In a rather lengthy argument to the trial court counsel for the petitioner made various statements and charges on the petitioner’s behalf. The primary contention of the petitioner was summarized by his attorney to the lower court as follows:
“I think that I fully understand what Mr. Webb’s contentions are and I think his primary contention is that he entered a plea not fully realizing the nature of the offense with which he was charged and that he would not have entered a plea of guilty had he realized that the charge was burglary and larceny as opposed to forgery and uttering. . . .”
The petitioner contends the offense to which he pleaded guilty did not occur in the nighttime, as alleged in the complaint and information, and that if he had appreciated the nature and purpose of the preliminary hearing, he would have presented the testimony of various witnesses to establish that he was elsewhere at the time the alleged offense was committed, thereby exonerating himself at that stage of the proceedings.
The petitioner contends he was told by Mr. Russo, his court-appointed counsel, that the state intended to dismiss the complaint involving the burglary and larceny charges and proceed only with the prosecution of the case involving the forgery charges. He asserts that it was on the basis of this erroneous information that he agreed with Mr. Russo’s suggestion that the preliminary hearing be waived.
The petitioner contends that Mr. Russo’s failure to advise him that he would be entitled to present evidence at the preliminary hearing, when coupled with the fact that he was misinformed as to what charges were to be dismissed, created a situation wherein the petitioner was denied an opportunity to have effective legal advice before deciding what course of action to pursue at this important stage of the proceedings.
The petitioner contends that even though count I of the information in Case No. 18,375-CR, charging him with burglary and larceny, was read to him immediately prior to the time he entered his plea of guilty, he remained unaware of the fact that he was admitting the commission of the offenses of burglary and larceny, rather than the forgery charges to which he intended to plead guilty. The petitioner maintains that it was not until he had been committed to the penitentiary and had an opportunity to study a copy of the journal entry of judgment that he realized a mistake had been made.
Accordingly, the petitioner contends that his failure to have a full appreciation and understanding of the nature of the crime to which he was asked to enter a plea—whether such lack of understanding resulted from a breakdown in communications between his court-appointed attorney and himself, or from his own limitations—caused him to enter a plea that was not knowingly and understandingly made. By reason thereof the petitioner argues the judgment and sentence which was imposed upon him should be vacated and set aside.
The trial court after having examined the pleadings and records on file in cases numbered 18,371-CR and 18,375-CR, and after hearing the argument and statement of counsel for both the petitioner and respondent, found as follows:
“The Court finds that on the 1st day of June, 1964, defendant Raymond Lee Webb, petitioner herein, was present in The District Court of Wyandotte County, Kansas, Division No. 4, and the matter of counsel for defendant Webb was discussed; that the defendant had two attorneys representing him in The City Court of Kansas City, Kansas; Anthony Russo in case number 18375 criminal and Lawrence Long, Jr., in case number 18371 criminal. The Court finds that in the proceedings of June 1, 1964, the defendant was told by the court that he was charged with burglary and larceny in case number 18375 oriminal and with forgery in case number 18371 criminal, whereupon the Court appointed Anthony Russo, a regularly practicing attorney to represent defendant in both cases.
“The Court further finds that on June 10, 1964, defendant Raymond Lee Webb, petitioner herein, appeared in open court with his appointed counsel, Anthony Russo, whereupon an assistant county attorney, William L. Roberts, requested case number 18371 criminal be dismissed and it was so ordered. Thereupon the assistant county attorney, William L. Roberts, requested count II in case number 18375 criminal be dismissed and it was so ordered.
“The Court further finds Count I of the information in case number 18375 criminal was thereupon read to defendant, Raymond Lee Webb, charging him with burglary and larceny in contravention of G. S. 1949, 21-520, whereupon defendant pleaded guilty. The Court finds defendant stated into the record, T am guilty,’ and further made a statement into the record in regard to tire offense to which he plead guilty.
“The Court, further finds that defendant Raymond-Lee Webb, at no time claimed any misrepresentation and the Court finds in fact drat there was no misrepresentation made to defendant. The Court finds defendant was duly advised of the charge and finds that the plea of guilty was freely and voluntarily entered thereto.
“The Court further finds that after defendant’s statement as to the offense charged that defendant was advised of his rights again; defendant, having affirmed his plea of guilty, the court thereupon entered sentence and that defendant, together with counsel, made no complaint thereto and asked no questions of the court nor requested that any evidence be adduced or witnesses called.
“The Court further finds that it is not deemed necessary to have petitioner, Raymond Lee Webb, present in person in court for the purpose of this motion, and finds that Clifford Mueller, the attorney appointed to represent petitioner herein, did so in fact represent petitioner; that said attorney was capable and competent and that petitioner was adequately represented herein.
“The Court finds petitioner, Raymond Lee. Webb, has failed to substantiate his claim as presented by his attorney, Clifford Mueller, and that his motion to set aside sentence and vacate judgment should be and is hereby denied.”
It has been recognized that a plea of guilty, in order to be valid, must be freely, knowlingly and understandingly made. Otherwise it is a violation of the constitutional guarantee of due process and the judgment is void. (Miller v. Hudspeth, 164 Kan. 688, 705, 192 P. 2d 147, and authorities cited therein.)
It is to be noted the petitioner was not present at the hearing in the district court on his 1507 motion. It must be conceded that Rule No. 121 (h) of the Supreme Court (194 Kan. xxvm) is to be applied in proceedings conducted pursuant to K. S. A. 60-1507. This rule relates to the presence of the prisoner and provides, in substance, that he should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which he participated. The sentencing court, however, is given discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the prisoner to be present.
The question posed, therefore, is whether upon the record presented to the trial court the claim of the petitioner is substantial.
For the reasons hereafter assigned, we think the trial court was well within its power of discretion when it determined the petitioners claim was not substantial and found that it was unnecessary to have the petitioner present or grant an evidentiary hearing. In fact, we think, based upon the record presented, the petitioner’s claim has no legal merit.
It is an established rule in proceedings of this nature that the burden of proof is never sustained by the unsupported and uncorroborated statements of the petitioner. (State v. Richardson, 194 Kan. 471, 399 P. 2d 799, and Supreme Court Rule No. 121 [g].)
Nowhere in the petitioner’s motion is any witness named nor is reference made to any other evidence by which the petitioner could substantiate his claim. Furthermore, counsel appointed to represent the petitioner in this proceeding at no time suggested that any witness, other than the petitioner, could substantiate his claim. In fact, counsel argued the truth of the petitioner’s contentions must necessarily be determined in large part from his own statements, since he alone knows what was in his mind at the time he entered his plea of guilty.
The transcript of the record taken in the criminal proceeding on June 1, 1964, discloses that the trial judge asked the petitioner specifically about Case No. 18,371 in which Mr. Long was appointed to represent him at the preliminary hearing, and the trial judge referred to it as being the forgery charge, to which the petitioner answered “Yes, sir.”
On June 10, 1964, the petitioner and his attorney appeared in the district court, at which time the county attorney asked to dismiss all four counts in Case No. 18,371-CR.
Count II in Case No. 18,375 was also dismissed, and the court directed the reading of count I of the information in Case No. 18,375-CR to the petitioner and his attorney. The information was read aloud. The information refers to the “nighttime,” “burglariously,” “dwelling house,” “steal, take and carry away,” “feloniously and burglariously breaking, opening and entering,” “steal, take and carry away,” “R. C. A. Victor Hi Fi.” Nothing to suggest forgery is mentioned in the information.
The petitioner stated “I am guilty of the charge.” He further admitted several times that he was guilty and advanced no reason why sentence should not be imposed. The petitioner discussed possession of the record player, acknowledging his guilt, and the court advised him he had entered a plea of guilty to the charge of burglary and larceny.
At no time during the plea or during the sentencing was any statement made that could confuse the issue concerning the crime charged.
The petitioner’s plea of guilty is a confession of guilt of the crime charged and of every fact alleged in the charge, and legally speaking, it is the most formal and binding confession it is possible for a defendant in a criminal case to enter. (State v. Downs, 185 Kan. 168, 341 P. 2d 957.)
The record further discloses that the petitioner applied for a parole shortly after he was sentenced. Again, after he was in the penitentiary, the petitioner wrote a letter requesting further parole consideration, wherein he again admitted the offense to which he pleaded guilty, and further recognized the validity of the judgment and sentence. (See, State v. Mooneyham, 192 Kan. 620, 390 P. 2d 215, cert. den. 377 U. S. 958, 12 L. Ed. 2d 502, 84 S. Ct. 1640; State v. Irish, 193 Kan. 533, 393 P. 2d 1015; State v. Robertson, 193 Kan. 668, 396 P. 2d 323; and State v. Baier, 194 Kan. 517, 399 P. 2d 559.)
Other points raised by the petitioner in his statement of points have either been abandoned or his counsel has virtually conceded them to be without merit.
In conclusion we hold all of the findings of the trial court are supported by the matters contained in the files and records that were before it.
The judgment of the lower court is affirmed. | [
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Per Curiam:
This was a criminal prosecution for selling
intoxicating liquor in violation of the prohibitory liquor law of 1881. The defendant was arraigned, pleaded not guilty, was tried before the court and a jury, and found not guilty. Judgment was rendered by the court discharging the defendant ; and from this judgment the state attempts to appeal to this court. Of course no such appeal can be had, and upon the authority of the following cases the appeal will be dismissed : The State v. Carmichael, 3 Kas. 102; City of Olathe v. Adams, 15 id. 391; City of Oswego v. Belt, 16 id. 480; The State v. Crosby, 17 id. 396. | [
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The opinion of the court was delivered by
Hatcher, C.:
This controversy steins from an award in a condemnation proceeding.
The State Highway Commission determined that it was in the public interest to build a controlled-access highway which would by-pass Wichita, Kansas on the west and north in such a manner as to connect State Highway 254 running east to El Dorado, Kansas with Interstate Highway 235 and avoid the necessity of the traffic passing through the city of Wichita. It was necessary to condemn certain lands for such purpose including part of appellants’ land.
The appellant landowners own a farm consisting of 274.62 acres outside the city limits of Wichita which was generally described as:
“The North 42.09 acres of the East Half (E/2) of the Southwest Quarter (SW/4) of Section 23; the East Half (E/2) of the Northwest Quarter (NW/4) of Section 23; and the Northeast Quarter (NE/4) of Section 23, all in Township 26 South, Range 1 East, Sedgwick County, Kansas.”
The land is bounded on the north by 53rd Street and on the east by North Oliver Street. The C. R. I. & P. Railroad runs diagonally across the land from the southwest. The new highway was to parallel the railroad right-of-way on the west.
The State Highway Commission condemned five separately described tracts from the appellants’ land. A rough map' appended to the opinion will sufficiently identify the tracts without including the lengthy metes and bounds descriptions. The general information contained in the condemned s petition may be summarized as follows:
Tract (a) contains 5.28 acres in the southwest quarter of Section 23 taken for the construction of part of the controlled access highway.
Tract (b) contains 20.88 acres in the east half of the northwest quarter and the northeast quarter of Section 23 taken for the new controlled-access highway and also land taken in a triangular shape west of the railroad right-of-way abutting 53rd Street for the construction of an overpass on 53rd Street. The interest taken is described as “An Easement for Right-of-Way for Controlled-Access Highway Purposes.”
Tract (c) contains .30 acres taken from the east half of the northwest quarter of Section 23 for a channel change and for removal of borrow material.
Tract (d) contains 4.94 acres in the northeast quarter of Section 23 abutting on existing 53rd Street east of the railroad right-of-way. The interest taken is described as “An Easement for Right-of-Way for Controlled-Access Highway Purposes.” However, all of this land was taken for the construction of the east half of the overpass on 53rd Street.
Tract (e) is the 20.07 acres taken to remove borrow material in the east half of the west half of Section 23.
The court appointed appraisers valued the 51.47 acres of land taken at $47,456.00 and estimated damages to the remainder at $6,032.00, or a total of $53,488.00. Both the landowners and the condemner appealed from the appraisers’ award. Following the trial of the matter on appeal the jury rendered a verdict in favor of the landowners for $49,000.00. The fair and reasonable value of the land taken was found to be $39,000.00 leaving $10,000.00 as damages to the remainder.
The landowners have appealed to this court from the verdict of the jury and the judgment rendered thereon.
The appellants contend generally that the trial court erred in overruling the motion to set aside the verdict and for a new trial. They make a specific charge that the verdict was grossly inadequate, contrary to the evidence and not supported by any competent evidence. We cannot agree witih this contention. The amount reached by the jury in its verdict was well within the range of the testimony of the expert witnesses. The testimony of the witnesses as to the total award due the landowners ranged from $46,705.00 to $75,-115.50. The jury’s general verdict of $49,000.00 was well within that range.
It is a universal rule of this court that if a verdict is supported by substantial evidence it will not be disturbed on appeal. (McCarthy v. Tetyak, 184 Kan. 126, 334 P. 2d 379; Townsend, Administrator v. Jones, 183 Kan. 543, 555, 331 P. 2d 890; Purvis v. Brenner, 189 Kan. 369, 374, 369 P. 2d 253.) Neither will a verdict for actual damages be disturbed merely because this court cannot definitely ascertain the precise method by which the jury arrived at the exact amount of its verdict when such an amount is reasonably within the range of the evidence. (Will v. Hughes, 172 Kan. 45, 238 P. 2d 478; Taylor v. State Highway Commission, 182 Kan. 397, 320 P. 2d 832; Johnson v. Colorado Interstate Gas Co., 182 Kan. 474, 479, 322 P. 2d 781.)
If the evidence of the expert witnesses was competent it was ample to support the verdict of the jury. This brings us to the more serious question: Was incompetent testimony erroneously admitted as to damages to the remaining land or the value of the land taken?
The appellants state in their brief:
“In the case at bar the Commission tried the case on the erroneous theory that they were not taking the right of access to 53rd Street, and undoubtedly instructed their witness ... to base his testimony on such theory.
We do not so understand the commission’s position. The commission does not contend that there was no loss of actual right of ingress and egress to 53rd Street, neither does it contend that the landowners were not damaged because there was no taking of the legal access. The' commission simply contends that its witness had the right to express his opinion to the effect that the access taken caused no damage to the remainder of the land. The witness testified:
“Q. Well, you mean you didn’t give any damage, then you didn’t consider that they were damaged by reason of that loss of access, did you?
“A. That is what I stated, that in my opinion they were not damaged.
“Q. Did you consider a loss of access a property right of an abutting owner or not, . . .?
“A. There is no legal loss of access.
“Q. It isn’t a question of legal loss of access. The question is whether there was a loss of access. I’m asking, did you consider the loss of access from an existing road was or was not a property right of the Diefenbachs before their land on the north side was taken?
“A. It’s a property right, but in my opinion it had no value.”
It is quite clear that what the witness was attempting to say on cross-examination was that there was no compensable damages for loss of access. The right of access was a property right but in the witness’ opinion it had no value.
The appellants next complain of the witness’ valuation of the twenty and a fraction acres condemned for a borrow pit. The witness valued the acreage at 75% of the fee value of $750.00 per acre because only an easement was taken and the owners would some day get back the acreage taken.
The valuation by the witness of the land taken for a borrow pit was based on an erroneous theory. The commission took a perpetual easement in the acreage. The interest taken by the commission was the same as that taken for the highway right-of-way.
The condemner cannot now contend before the jury that it intends only a limited use where the right taken is perpetual. In Sutton v. Frazier, 183 Kan. 33, 325 P. 2d 338, we held:
“In an eminent domain proceeding the report of the appraisers must show what is taken, and what the landowners part with. Nothing is taken by implication or intendment, and the landowners may rely implicitly on the report filed which becomes the evidence and the only evidence of the commissioners’ doings.” (Syl. 8.)
The landowners are entitled to compensation based on the full use which the condemner has the right to exercise over the ease ment condemned as described in the condemner s petition and considered by the appraisers. (Roberts v. Upper Verdigris Watershed, 193 Kan. 151, 392 P. 2d 914.)
However, we do not believe that the appellants should be permitted to raise the question for the first time on appeal.
The witness stated that he valued the land at $1,000.00 per acre. He then testified further:
“A. There were 20.07 acres of borrow taken. And I valued the borrow easement taken at 75% of the fee or $750.00 per acre. The fee title holder has rights remaining in the borrow pit.
“Mr. Villepigue: I object to that, Your Honor.
“The Court: Sustained.
“Mr. Villepigue: I move that his testimony be stricken on the grounds that it is not—
“The Court: I’ll strike that portion of the testimony.
“Mr. Villepigue: That is what I mean.”
It definitely appears that at the request of appellant the court struck that part of the testimony which determined how the value was determined but the court was not requested and did not strike the testimony as to the value of the easement taken. However, after the testimony was stricken the appellant continued the same line of questioning. We quote:
“Q. What I mean is, ... I want to know whether or not in appraising the value of the 223.15 acres after the taking you considered that the owners would get back the some [same] 20.88 acres in that borrow pit on the west side of their property?
“A. Well, again, I’m not attempting to practice law, Mr. Villepigue. The instructions that we are given on a borrow easement is that the fee title is not taken.
“Q. Yes.
“A. That is what I am attempting to say.
“Q. And you are saying that they will get it back? Well?
“A. And it was my understanding that all that was taken from them was the right to remove the dirt, the land for fill.
“Q. Now, assuming that under the law when a highway or other State ,. agency or corporation condemns land and they take the land for a borrow pit, that the law is that they take all of the title to that property, would that make any difference as to the value in your opinion of the land, of 223.15 acres, after the taking?
“A. If I was told that under the law they were taking—
“Q. I asked you to assume that.
“A. That they were taking all of the fee?
“Q. Yes.
“A. Then I could value the entire fee ownership.”
There was no objection following this cross-examination.
We can only assume that appellant wished to let the witness’ testimony stand as to the total value of the land taken after the witness’ method of arriving at the value of the land taken had been discredited.
The appellants did not ask to have the testimony of the witness as to value stricken. Neither did they ask the court to instruct the jury to disregard the testimony or to instruct the jury specifically on the proper measure of valuing a perpetual easement for a borrow pit. Neither was the specific question raised on the motion for new trial.
We are not informed as to appellants’ strategy but able counsel must have been satisfied with the testimony as it went to the jury.
An appeal from the appraisers’ award is to be docketed and tried as any other civil action. (K. S. A. 26-508.) The general rules applicable to civil actions therefore apply.
An objection to evidence cannot be made for the first time on appeal. In Thornton v. Bench, 188 Kan. 89, 360 P. 2d 1065, we state at page 94:
“As it noted, plaintiff’s objection was solely on the ground of irrelevancy. He here contends that the trial court erred in overruling the objection on the ground that the exhibit was hearsay. What was said in Gaynes v. Wallingford, 185 Kan. 655, 347 P. 2d 458, fully answers the contention:
“ ‘. . . The short answer to the contention is that the appellant made no objection to the testimony as not being the best evidence, or that it was hearsay as to the appellant, and made no motion to strike the evidence for those reasons. Under such circumstances, the objection comes too late when it is first made on appellate review (Long v. Lozier-Broderick & Gordon, 158 Kan. 400, 147 P. 2d 705.’ (1. c. 661.)” (See, also, Folkerts v. Kansas Power & Light Co., 190 Kan. 159, 372 P. 2d 997.)
We have carefully reviewed other questions presented by appellant which are closely related to those determined herein and find no trial errors which would require the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This is a workmens compensation case in which an award was entered in favor of the appellee, Edward Charles McCarty, hereafter referred to as claimant. The employer, Great Bend Board of Education and/or Great Bend Recreation Commission, herein called the commission, and its insurance carrier, have appealed from the judgment and will be designated collectively in this opinion as respondents.
The principal contention made by the respondents in this appeal is that the claimant was an independent contractor at the time of his injury and, hence, was not covered under the Workmen’s Compensation Act.
The workmen’s compensation examiner, before whom the claim was originally heard, rejected the respondents’ contention and specifically found that claimant was not an independent contractor on the date of his injury, but that he was in the employ of the commission. On appeal, the district court adopted the findings of the examiner as its own. Accordingly, under long recognized and well defined rules of appellate practice, our consideration of the question is restricted to determining whether the record contains substantial competent evidence to sustain the findings adopted by the trial court. (McDonald v. Rader, 177 Kan. 249, 277 P. 2d 652; Kafka v. Edwards, 182 Kan. 568, 322 P. 2d 785; Rakes v. Wright Cooperative Exchange, 185 Kan. 794, 347 P. 2d 389.)
The evidence is not seriously in dispute and may be summarized briefly. The claimant, an elderly gentleman o£ some 72 years, is a plasterer by trade. On June 23, 1963, either the director or the secretary of the recreation commission called the claimant about patching some plaster in the building occupied and used by the commission. Claimant agreed to do the work but said that, although he would use his own hand tools, the commission would have to furnish the scaffold, the mortar box and the helpers. This was agreeable and claimant appeared for work the next morning, at which time the scaffold was not built, nor were the helpers there. The claimant then went home but returned later after receiving a call that everything was ready. At this time, Carl Soden, the director of the commission, showed claimant the work to be done upstairs and said he had some more in the downstairs hallway. Claimant thereupon began work, using the scaffold which had been put up and being assisted by two commission employees who mixed the mortar and carried it to the scaffold for claimant’s use. Soon after commencing work, the claimant fell from the scaffold and sustained severe injuries, the extent of which is not material to this appeal.
This court, on frequent occasions, has discussed the conditions under which an independent contractor relationship is created, and any extended dissertation on the subject at this time would be but a superfluous display of legal erudition. The last case in which we were called upon to define the term and to distinguish the status of an independent contractor from that of an employee was Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108, in which several of our prior decisions were reviewed and their rationale approved.
In general, it may be said that an independent contractor is one who, in the exercise of an independent employment, contracts to do a piece of work according to his own methods and who is subject to his employer’s control only as to the end product or final result of his work. (Krug v. Sutton, 189 Kan. 96, 366 P. 2d 798.) On the other hand, an employer’s right to direct and control the method and manner of doing the work is the most significant aspect of the employer-employee relationship, although it is not the only factor entitled to consideration. An employer’s right to discharge the workman, payment by the hour rather than by the job, and the furnishing of equipment by the employer are also indicia of a master-servant relation. (Jones v. City of Dodge City, supra.)
It is our opinion that, when measured by the foregoing standards, the recorded evidence sufficiently supports the findings adopted by the trial court. The record discloses, in addition to the facts already related, that claimant was being paid on an hourly basis; that Soden had the right to discharge claimant if the latter’s work was unsatisfactory; and that Soden could have told claimant how he wanted the work done and claimant would have followed his directions. These are all circumstances indicating that claimant was an employee of the recreation commission.
The respondents suggest that claimant’s employment was not covered by the act because the work being performed was not in pursuance of the commission’s principal business. This suggestion, we believe, is without merit. An employer may not come within the provisions of the act as to some of its employees and not as to others. (Schroeder v. American Nat’l Bank, 154 Kan. 721, 121 P. 2d 186.) Furthermore, we cannot say that the repair and maintenance of a building occupied and used by the commission is unrelated to its business of furnishing recreational facilities for the people of Great Rend.
Similar questions were considered by this court in Raynes v. Riss & Co., 152 Kan. 383, 103 P. 2d 818. In that case, injury was sustained by a workman employed in remodeling a building to be used by his employer in operating a trucking business, and it was there held that such employment was incidental to the employer’s business. Other cases to like effect are cited in both the Schroeder and Raynes cases.
We have no disagreement with the cases cited by the respondents, but we believe they are not decisive of the issue presented here.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a proceeding instituted pursuant to K. S. A. 60-1507, in which the district court of Montgomery County, Kansas, denied the petitioner’s motion for discharge from the Kansas State Penitentiary. Appeal has been duly perfected.
The questions presented are: (1) Whether the petitioner, an indigent, was entitled to court-appointed counsel at his prelimi nary hearing in criminal proceedings which resulted in his conviction; (2) whether a voluntary plea of guilty in the district court, after appointment of counsel, constitutes a waiver of any alleged irregularities in the proceedings; and (3) whether a petitioner in proceedings instituted pursuant to 60-1507, supra, is entitled to the appointment of different counsel on appeal to the Supreme Court in the 1507 proceeding in order to challenge the competency of counsel who represented him at the trial in the criminal action.
The petitioner, John Charles Talbert, was arrested on November 13, 1963, by virtue of a warrant charging him with burglary in the second degree and larceny in connection with the burglary. He was taken before the magistrate in the court of Coffeyville, Kansas, on the same date, where he entered a plea of guilty and waived a preliminary hearing. Thereupon, the magistrate bound the petitioner over for trial to the next term of the district court. The petitioner was not represented by counsel when he appeared before the magistrate.
On November 22, 1963, an information was filed in the district court of Montgomery County, Kansas, sitting at Coffeyville, charging the petitioner with burglary in the second degree under G. S. 1961 Supp., 21-520, and larceny in connection with burglary under G. S. 1949,21-524.
On the same day, the petitioner appeared in the district court without counsel. After explaining the nature of the charge to the petitioner, the court advised him of his right to counsel of his own choosing and, upon inquiry, the court determined that the petitioner was indigent and unable to employ counsel. The court then advised the petitioner of his right to counsel by appointment of the court and, after the petitioner indicated to the court his desire to waive counsel, the court appointed counsel over the petitioner’s objection so that he would be fully advised and his rights in the criminal proceeding protected. Jack L. Lively, a member of the Montgomery County bar, was appointed and the case was continued to give the petitioner an opportunity to confer with his attorney.
Thereafter, the case was called for arraignment, and upon arraignment the defendant entered a voluntary plea of guilty to the charges set forth in the information. Thereafter the court imposed sentences upon him as prescribed by law, such sentences to run concurrently.
The petitioner is presently serving the sentence imposed upon him at the Kansas State Penitentiary at Lansing, Kansas.
On the 22nd day o£ July, 1964, the petitioner filed a motion in the district court of Montgomery County, Kansas, to set aside and vacate the sentence. This motion was in the form of a letter directed to the judge of the district court of Montgomery County, Kansas. The petitioner s letter was treated by the court as a motion to set aside and vacate the judgment previously imposed. The petitioner alleged in his motion that he was not represented by counsel at his arraignment nor prior thereto.
On the 13th day of August, 1964, the petitioner’s application to set aside and vacate the sentence was set for hearing. The petitioner was notified of the hearing and the trial court, after considering the motion by examining the records and files, including the transcript of the petitioner’s arraignment, overruled the motion.
The trial court found that no substantial questions of law or triable issues of fact were presented which required the appointment of counsel to assist him, and that the petitioner’s presence in court was not required. The court further found the petitioner was represented by court-appointed counsel who was present at his arraignment in the district court, and that the lack of counsel prior thereto was immaterial. It found the petitioner was represented by competent counsel at the arraignment in the district court, and further that the petitioner, while being represented by counsel, entered his plea of guilty to the charges set forth in' the information, and that the judgment and sentence imposed on the 22nd day of November, 1963, was valid in all respects.
The petitioner filed his notice of appeal pro se and in forma pauperis, and requested appointment of counsel under Rule No. 56 of the Supreme Court. On the 2nd day of October, 1964, Jack L. Lively, the same attorney appointed to represent the petitioner at the trial in the criminal proceedings, was appointed to represent him on appeal in this proceeding under 60-1507, supra. On the 9th day of October, 1964, the petitioner notified the district court by letter that he was complaining of his court-appointed attorney and requested that a different attorney be appointed. Thereupon, Mr. Lively, the petitioner’s court-appointed attorney, filed a motion to withdraw on the ground that he was unable to raise all issues set forth in the notice of appeal filed by the petitioner, which motion the district court overruled on the 13th day of November, 1964.
The first two questions raised by the appellant were answered by this court in State v. Jordan, 193 Kan. 664, 396 P. 2d 342, on facts identical to those presently under consideration, except that different counsel was appointed to represent the petitioner in the 1507 proceedings. The court there held in the syllabi:
“Under the provisions of G. S. 1949, 62-615, any person accused of felony may be assisted by counsel at a preliminary examination, but there is no statute requiring the appointment of counsel, and, in the absence of such a statute, an accused has no constitutional right to counsel at such an examination.
“The city court of Coffeyville has the same criminal jurisdiction as justices of the peace have in this state. (G. S. 1961 Supp., 20-1603.)
“A justice of the peace who sits as an examining magistrate at a preliminary examination of an accused who is charged with the commission of a felony, has no jurisdiction to arraign the accused or to accept a plea of guilty on said charge, and, where the transcript of the examination discloses such a purported arraignment of the accused and his plea of guilty to said charge, it is a nullity and should be disregarded.
“Any alleged ‘irregularity’ pertaining to a preliminary examination is deemed to have been waived where a defendant enters a voluntary plea of guilty in the district court.” (Syl. ¶¶ 1 through 4.)
The Jordan decision, to which we adhere, has since been affirmed in State v. Blacksmith, 194 Kan. 643, 400 P. 2d 743; and decisions of the United States Supreme Court cited by the petitioner in support of his contentions have been analyzed and found to be unavailing by this court in State v. Richardson, 194 Kan. 471, 399 P. 2d 799; and State v. Blacksmith, supra.
The petitioner contends it was error for the trial court to refuse to appoint different counsel under Rule No. 56 to present his appeal in this proceeding. It is argued he should be permitted to raise and exhaust all issues in one proceeding—that if the two court-appointed counsel are one and the same person, the petitioner never has an opportunity to properly raise and pursue the issue of competency of court-appointed counsel at the trial of the criminal proceedings.
It does not appear that the petitioner in his original motion questioned the competency of counsel. This was raised for the first time in his notice of appeal from the order overruling his motion to set aside and vacate the sentence. Even then, the petitioner states only that Mr. Lively is a novice member of the Montgomery County bar, and that he only visited with him for a short time concerning this case. (See, State v. Richardson, supra.)
When the trial court considered the petitioner’s letter requesting different counsel, and the motion of his court-appointed attorney to withdraw from the case, it was within the discretionary power of the trial court to rule upon the motion, either to grant it or deny it. The record shows no evidence of incompetency on the part of counsel appointed to represent the petitioner in the criminal proceeding, and we must conclude the trial court did not abuse the exercise of its power of discretion in denying the motion. (See, State v. Calhoun, 194 Kan. 378, 399 P. 2d 886; and State v. Richardson, supra.)
The petitioner’s contention that the trial court did not properly consider his motion to vacate and set aside the sentence is not borne out by the record. The motion was set for hearing by the court. The petitioner was notified as to the hearing date, and the court, pursuant to Rule No. 121 (/) (found in 193 Kan., Advance Sheet No. 4, p. iii) considered the files and the records of the case which it found conclusively disclosed that the movant was entitled to no relief—that the petitioner raised no triable issues of fact or substantial questions of law which would require his presence in the court at the time of the hearing on the motion or require the appointment of counsel to represent him. (See, Rule No. 121 [h] and [i].) The court further found the petitioner’s statement that he was not represented by counsel at his arraignment was refuted and contradicted by the transcript thereof, and that it showed counsel was appointed to represent the petitioner in the criminal proceeding prior to his arraignment. It further found the petitioner, while being represented by counsel, entered a plea of guilty to the charges set forth in the information. (See, Rule No. 121 [/].)
Contrary to the petitioner’s contention, the record discloses the trial court carefully considered the entire record, including the transcript of the arraignment, and gave due consideration to each point raised by the petitioner. Nothing was presented to the trial court which would show that the judgment should be set aside.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.;
This appeal involves an action for divorce, custody of three minor children of the parties and a division of property, which action was instituted by the plaintiff-appellee, Gerald R. Bergen. Issues were formed by appropriate pleadings, and the case was tried to the district court. Judgment was rendered for the plaintiff and the defendant has appealed from the judgment and the order overruling her motion for a new trial.
The parties were married in Arcadia, California, on August 11, 1956, while both were students at Ottawa University, Ottawa, Kansas. The plaintiff is 30 years of age, and employed as an eighth grade school teacher in the Junior High School of Abilene, Kansas, where he teaches American History and coaches three sports.
During the period of their marriage, the parties became the parents of three children: Kervin Frank, who was six years of age in June, 1963; Kristen Faye, who was four years of age in September, 1963, and Jeri Sue, who was three years of age in August, 1963.
Upon the completion of the plaintiff’s and defendant’s evidence and after each had rested, the district court made numerous findings of fact and conclusions of law. It would serve no useful purpose to set forth the findings of fact in this opinion, except to state that the district court found from the evidence “it appears that it will be for the best interests of the three minor children hereinbefore named to award their custody to the plaintiff. . . .”
In accordance with its findings of fact, the district court concluded as a matter of law that the plaintiff be awarded a divorce on the grounds of gross neglect of duty and extreme cruelty, and that the defendant was an unfit person and an unworthy mother. The court awarded custody and control of the three minor children to the plaintiff, with reasonable rights of visitation to the mother; awarded tihe plaintiff the 1960 Chevrolet station wagon; the household goods, and all clothing, toys and playthings of the children. The defendant was awarded the gross sum of $3,000.00 as permanent alimony payable at the rate of $65.00 each month, and attorney fees for her attorneys in the sum of $250.00.
The defendant argues that there was no substantial evidence to support the district court’s findings of fact and conclusions of law; that it erred in finding the defendant was an unfit person and an unworthy mother and awarding custody of the three minor children to the plaintiff, and cites Brandon v. Brandon, 14 Kan. 342; In re Bort, Petitioner, 25 Kan. 308, 311; Harmon v. Harmon, 111 Kan. 786, 208 Pac. 647; Smith v. Scheuerman, 133 Kan. 348, 299 Pac. 616; Janney v. Janney, 159 Kan. 230, 231, 154 P. 2d 131; Bierce v. Hanson, 171 Kan. 422, 427, 233 P. 2d 520; Lindbloom v. Lindbloom, 177 Kan. 286, 298, 279 P. 2d 243, and Hazelwood v. Hazelwood, 190 Kan. 493, 496, 376 P. 2d 815, in support of her contentions. The defendant also argues that the district court erred in allowing counsel only $250.00 attorney fees.
Nothing would be gained by setting forth the evidence, but suffice it to say we have carefully examined the record, and conclude there was ample substantial, competent evidence to support each and every finding of fact and conclusion of law made by the district court. The district court saw the witnesses and the parties, observed their demeanor, and assessed their character. In weighing their testimony and considering the best interests of the children under all the circumstances, the court concluded that the best interests of the minor children would be best served by awarding their custody to the plaintiff. The district court did not stop with its finding that the best interests of the minor children would be best served in the custody of their father, but went further and found that the mother was an unfit and unworthy person to be awarded their custody. The decisions cited and relied upon by the defendant-mother are not helpful, and it cannot be said that the district court abused its discretion in awarding the custody of the three minor children to the plaintiff. In Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746, the trial court awarded custody of minor children to the plaintiff-father and this court affirmed the judgment. In the opinion it was said:
“In the situation here presented the paramount consideration of the court is the welfare and best interests of the child. The court has recognized in a long line of cases that the trial court is in the best position to judge whether the best interests of a child are being served, and in the absence of abuse of judicial discretion this court will not disturb a trial court’s judgment. (Kimbell v. Kimbell, 190 Kan. 488, 491, 376 P. 2d 881; Jackson v. Jackson, 181 Kan. 1, 309 P. 2d 705; Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167.) However, where an abuse is affirmatively shown in the record, this court has not hesitated to reverse, modify or otherwise change the order of a trial court. (Lindbloom v. Lindbloom, 177 Kan. 286, 279 P. 2d 243; Wilkinson v. Wilkinson, 147 Kan. 485, 77 P. 2d 946; Jackson v. Jackson, supra.)” (1. c. 532.)
“Where the issue exists only between the parents, as in the instant case, and no third party is involved, then the primary question to be determined by the court is the welfare and best interests of the children. All other questions are subordinate. (Merriweather v. Merriweather, 190 Kan. 598, 599, 376 P. 2d 921; Kimbell v. Kimbell, supra; In re Vallimont, supra; Collins v. Collins, 177 Kan. 50, 276 P. 2d 321.)” (1. c. 533.)
It is obvious from the foregoing that this court is compelled to' affirm the judgment awarding custody of the minor children to the plaintiff. However, we point out that a decree awarding custody of minor children is not res judicata in the sense generally applicable to judgments. Under our statute (K. S. A. 60-1610) custody of minor children may be modified or changed at any time whenever circumstances render a modification or change of the former order proper, but the burden of proving a change of custody rests upon the party requesting the change. (Bierce v. Hanson, supra; In re Petitt, 84 Kan. 637, 114 Pac. 1071.)
We now turn to the defendant’s contention that the district court abused its discretion in allowing the defendant only $250.00 for attorney fees. The district court found that the plaintiff had an annual income of approximately $5,850.00 and that his take-home pay was approximately $392.00 per month. This sum does not include what the plaintiff may earn through summer work while not teaching or attending school to get additional knowledge in his. teaching profession. Out of this sum, the plaintiff had many fixed obligations including the monthly payment of alimony to the de-
fendant. The court further found that the payment of fixed obligations did not include money for food, medicine, clothing or other unexpected expenses for plaintiff and the three minor children. After fully reviewing the financial situation of the parties, the court concluded that $250.00 was an adequate fee for attorneys, and under the facts and circumstances, we cannot say that the district court abused its discretion in that respect.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an action questioning the validity of an ordinance of the City of Pittsburg, Kansas, purporting to annex certain land to the city. The plaintiffs are the individual owners of a majority of the tracts or parcels of land lying within the area sought to be annexed. The trial court entered judgment in favor of the defendants, who are the City of Pittsburg and its commissioners, and the plaintiffs have perfected this appeal from that judgment. For convenience, the appellants will be designated as plain tiffs throughout this opinion, and the defendants will be referred to collectively as the city.
Before proceeding to the merits of the appeal itself, we pause to note the city’s contention that plaintiffs are not the proper parties to maintain this action. This point was first raised by the city in the lower court by a motion to dismiss the action. That motion was overruled by the trial court but was again submitted by the city at the conclusion of plaintiffs’ evidence, at which time it was again overruled. The city has filed no cross-appeal from either ruling.
K. S. A. 60-2103 (h) provides as follows:
“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 (20) days after the notice of appeal has been served upon him and filed with the clerk of the trial court, give notice of his cross-appeal.”
A similar predecessor statute, G. S. 1949, 60-3314, has been construed by this court as requiring an appellee to file a cross-appeal before he can present adverse rulings for review. (Giltner v. Stephens, 163 Kan. 37, 47, 180 P. 2d 288; Gould v. Robinson, 181 Kan. 66, 70, 309 P. 2d 405.) Inasmuch as the city gave no notice of cross-appeal, as provided by statute, its contention, as we have herein-before stated it, is not properly before us and may not be considered.
Turning to the merits of this controversy, it may be said that the facts are not seriously in dispute. Neither are they complicated. On November 18, 1963, the city adopted ordinance G-47 purporting to annex a tract of land described as Acme Investment Company’s Subdivision of the East Half (E Vi) of the Southwest Quarter (SW Vi) of Section Twenty-one (21), Township Thirty (30), Range Twenty-five (25) East, Crawford County, Kansas. The subdivision is divided into 15 lots numbered 1 to 15, inclusive, with each lot containing 5 acres. The total area of the subdivision is 75 acres. The majority of the lots are individually owned, while the largest area under a single ownership (being Lots 4, 5, and 6) contains 15 acres. The western boundary of Acme Subdivision adjoins the city limits of Pittsburg on Water Street, and the west boundary lines of all of the 15 lots within the subdivision also abut on the city limits.
The annexation proceedings were attempted under the provisions of G. S. 1949,13-1602, (now K. S. A. 13-1602) which in effect outlines four circumstances under which a city may annex territory. This statute, in pertinent part, reads:
“Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or whenever any unplatted piece of land lies within (or mainly within) any city, or any tract not exceeding twenty acres is so situated that two thirds of any line or boundary thereof lies upon or touches the boundary line of such city, said lands, platted or unplatted, may be added to, taken into and made a part of such city by ordinance duly passed. . . .
“In adding territory to any city, if it shall become necessary, for the purpose of making the boundary line straight or harmonious, a portion of a piece of land may be taken into such city, so long as such portion of the piece taken in does not exceed twenty acres . . .”
On oral argument, counsel for the city conceded that the area involved in this lawsuit is not a platted area within the definitions of 13-1602, supra. In such concession, counsel was eminently correct. In State, ex rel., v. City of Kansas City, 181 Kan. 870, 317 P. 2d 806, this court held that a “block” was a space or an area which was surrounded or enclosed by streets. Such, of course, is not true of Acme Subdivision; it is bordered by one street only— Water Street.
Neither does the city seriously contend that the area sought to be annexed lies within (or mainly within) Pittsburg, nor that the territory is necessary to straighten a municipal boundary line. The basis on which the city seeks to defend its annexation of Acme Subdivision is that the circumstances bring the case within that portion of 13-1602, supra, which authorizes a city to annex ány tract not exceeding 20 acres, where two thirds of any line or boundary of the tract lies upon or touches the city boundary.
The plaintiffs vigorously dispute the validity of the city’s contention in such regard. Although it is obvious from the record that the entire west line of Acme Subdivision lies upon the city’s boundary, the plaintiffs emphatically point out that the area concerned far exceeds 20 acres, being 75 acres in extent. In response, the city advances this argument: That none of the severally owned lots or tracts within the subdivision exceed 20 acres in extent, the largest being but 15 acres; that the entire western boundary of each lot lies upon and touches the city’s boundary; that since each of the several lots or tracts is less than 20 acres in extent and borders on the city boundary, each could have been annexed separately as an individual lot or tract; and, hence, that the city possessed the power to annex by one act the entire area comprising all the tracts or lots.
We are not impressed with the logic of this argument. The simple answer to such a contention is that the city did not attempt, in Ordinance G-47, to annex separate individual lots or tracts of 5, or even 15 acres, but sought, instead, to annex a single unplatted tract consisting of 75 acres. In its enactment of Ordinance G-47, attempting to annex Acme Subdivision as one tract, the city went beyond and exceeded the clear and explicit grant of authority con-, tained in G. S. 1949, 13-1602.
A municipal corporation is a creature of the legislature and can exercise only such powers as are conferred by law or such as may necessarily be implied to effectuate the powers specifically granted. (State v. Hannigan, 161 Kan. 492, 170 P. 2d 138; City of Garden City v. Miller, 181 Kan. 360, 311 P. 2d 306.) In State, ex rel., v. City of Topeka, 175 Kan. 488, 264 P. 2d 901, a case which, like the present action, involved the interpretation of 13-1602, supra, we held:
“Cities are creations of the legislature and can exercise only the power conferred by law, they take no power by implication, and the only power they acquire in addition to that expressly granted is that necessary to make effective the power expressly conferred.” (Syl. ¶ 2.)
The city places its principal reliance on City of Ottawa v. Goff, 177 Kan. 374, 279 P. 2d 293. In our view, that case is distinguishable from the one at bar, but due to the importance which the city attaches to the case, we feel obliged to analyze it at some length.
The facts in the Ottawa case were these: The city sought to annex land pursuant to G. S. 1949, 12-501 and 12-502 (now K. S. A. 12-501 and 12-502), which provide a different procedure than 13-1602, supra. Section 12-501 provides that when a city desires to enlarge its limits, it shall present a petition to the board of county commissioners describing by metes and bounds the territory sought to be added, and asking the board to make a finding as to the advisability of adding said territory to the city. Section 12-502 requires notice of time and place of hearing to be given and upon hearing, if the board is satisfied the addition of the territory will be to the city’s interest and will cause no manifest injury to property owners in the affected area, it shall so find and the city may enlarge its boundaries accordingly. Section 12-502 contains a proviso that no unplatted territory of over 20 acres shall be taken into the city over the protest of the owner thereof, (except under circumstances not here material).
In its petition, the city sought annexation of an area containing 56.74 acres comprising 39 tracts, the largest containing 6.05 acres. Written protests were filed by owners of 28 of the 39 tracts, whose combined area totaled 39.63 acres. The protesting landowners contended that tiheir combined ownership of more than 20 acres within the territory sought to be added satisfied the statutory provision that no territory should be taken into the city over the protest of the owner of more than 20 acres.
The court rejected this contention, pointing out that the statutory proviso referred to oioner in the singular, not to owners in the aggregate, and since no single protestor owned more than 20 acres, the combined protests of 28 owners did not come within the proviso. Hence, their combined protests were held to be unavailing, despite the aggregate of their acreage. It seems apparent that the decision hinged on the proper construction of the term owner, as opposed to owners.
We believe there is a clear distinction between this and the Ottawa case. Not only are different statutes involved, but more importantly, 13-1602, supra, deals with the annexation of tracts over 20 acres, as such, without regard to ownership, while the proviso in 12-502, supra, makes ownership of tracts containing more than 20 acres the determining factor in testing the validity of protests filed against their annexation. The two concepts are not the same; one resting on ownership, the other on area.
It is our considered judgment that in its attempt to annex Acme Investment Company’s Subdivision, the city exceeded the powers granted in G. S. 1949, 13-1602, and that Ordinance G-47 is, therefore, invalid.
The judgment of the district court is reversed and this case is remanded with directions to enter judgment in favor of the plaintiffs. | [
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The opinion of the court was delivered by
Pabkek, C. J.:
This is an appeal from an order and judgment of the district court of Linn County which, after a full and complete evidentiary hearing in precise accord with the requirements of K. S. A. .60-1507 at which petitioner was produced and present in person, denied petitioner’s motion to vacate and set aside a prior judgment and sentence imposed by that court in a criminal action. The record discloses petitioner was represented by competent court-appointed counsel throughout all vital stages of the proceedings herein involved.
The trial court’s decision with respect to the questions presented by the appeal is reflected in a well-written memorandum decision which sets forth the decisive and controlling facts at length, outlines the issues involved, and states the reasons for its decision and the judgment rendered in such manner and form it can well be incorporated in and made a part of the opinion of an appellate court. For these reasons, and others to be presently disclosed, we are disposed to quote such memorandum decision in toto. It reads:
“The Memorandum, of the Trial Court.
“1. This matter came on before the court for hearing on November 17, 1964. Under a prior order of the court, petitioner was produced and appeared in person; he also appeared by Harry C. Blaker, a regular practicing attorney of Pleasanton, Kansas, who was appointed to represent him. Rfespondent appeared by Leighton A. Fossey, County Attorney of Linn County, Kansas.
“2. Petitioner initially filed in this action a ‘Petition for a Writ of Habeas Corpus Ad Subjiciendum, under the authority and the provisions of 1963 G. S. 60-1506/ At the hearing, petitioner’s counsel moved that this document be treated and considered by the court as a motion to vacate under Section 60-1507 of the Kansas Code of Civil Procedure. This motion was allowed, and the ‘Petition’ is so considered.
“3. Petitioner raises the following points:
“a. That he was not timely advised that the habitual criminal action would be invoked.
“b. That the trial court, in determining that the habitual criminal action should be applied, relied upon a prior conviction of petitioner in Labette County; and that the certified copy of the order of the Labette County District Court shows on its face that the Labette County proceedings were invalid, the defendant having waived an attorney in writing in Labette County and the court having failed to make findings as required by the statute then in force (G. S. 1949, 62-1304.)
“c. That the clerk of this court returned his notice of appeal in the original conviction, and thus thwarted his efforts to appeal that conviction to the Kansas Supreme Court.
“d. That the District Court of Linn County, Kansas, was in error in denying petitioner’s motion for complete trial records.
“e. He had no legal counsel when he appeared before the justice of the peace for his preliminary examination.
“4. Petitioner’s testimony may be summarized as follows:
“a. Petitioner was arrested in Linn County, Kansas, on a charge of burglary in the second degree and attempted grand larceny early in July, 1958. He waived his preliminary hearing and did not have the advice of counsel prior to the time he was brought before the district court on July 14, 1958. On that date the district court appointed Marshall Hoag, an attorney of Pleasanton, Kansas, to represent him. Petitioner talked with Mr. Hoag in the courtroom; they sat over at one of the counsel tables and conferred. He again talked with Mr. Hoag when he was returned to court on July 23rd, 1958. On one of the dates—it is not clear which—he talked with his attorney privately in the small office which adjoins the courtroom. Petitioner does not contend that he was prevented from advising privately with his attorney. Mr. Hoag advised him that if he pled guilty, his sentence for burglary in the second degree would be five to ten years. He entered a plea of guilty on July 15, 1958, and sentencing was deferred.
“b. Shortly before he came into the courtroom for sentencing on July 23rd, 1958, petitioner was first advised that the county attorney intended to invoke the habitual criminal act and had certified copies of two prior convictions. When the court proceedings commenced, the county attorney handed Mr. Hoag the certified copies of two prior felony convictions, one in the District Court of Labette County, Kansas, and the other in the United States District Court for the Western District of Oklahoma. Mr. Hoag examined them and returned them to the county attorney. Petitioner did not have an opportunity to read them, but did not ask to see them. Immediately prior to sentencing, he moved the court for leave to withdraw his plea of guilty and this motion was overruled. The county attorney introduced certified copies of the prior felony convictions and the court proceeded to sentence the defendant to a term of fifteen years under the provisions of G. S. 1959, 21-107a.
“c. On December 19, 1958, petitioner mailed a notice of appeal to the clerk of this court and a copy thereof to Leighton A. Fossey, County Attorney. He filed a motion for a transcript at the same time, which was overruled by the Hon. Harry W. Fisher, District Judge, by order entered January 8, 1959. Petitioner testified that the notice of appeal mailed to the clerk was returned to him by the clerk, and he introduced into evidence upon this hearing a copy of the notice of appeal which bore the signature of the clerk of this court in the lower left hand corner. He stated that his principal complaint is the application of the habitual criminal act.
“Findings of Fact
“5. The court finds the facts to be as follows:
“a. Petitioner together with William C. Ashlock and Bonita G. Lyons were arrested on or about July 6, 1958, and charged with second degree burglary and attempted grand larceny on that date. All three were taken before O. G. Dennis, Justice of the Peace, Mound City Township, Linn County, Kansas, on July 7, 1958; all three defendants waived preliminary examination in writing and were bound over to the District Court of Linn County, Kansas, for trial.
“b. On the morning of July 14, 1958, Langdon W. Chance was first brought before the District Court. He stated that he was without funds to employ an attorney of his own choosing, and requested the court to appoint an attorney for him; the court appointed M. K. Hoag, a regular practicing attorney of Linn County, Kansas, to represent him. Petitioner was given an opportunity to confer with counsel, and did so. On the afternoon of July 14, 1958, petitioner was again brought before the court. He stated that he had discussed the matter with Mr. Hoag, who had advised him of the nature of the offense charged and the penalty; and the petitioner standing mute, the court entered a plea of not guilty for him. Later the same day, petitioner changed his plea to that of guilty, and the court accepted that plea, found him guilty of the offenses of burglary in the second degree and attempted larceny, and deferred sentencing until July 23, 1958. There was no mention in the proceedings of July 14, 1958, with reference to the habitual criminal act. The court finds that petitioner was not notified that the habitual criminal act would be invoked until July 23, 1958.
“c. On July 23, 1958, at 4:10 o’clock P. M. (and following the jury trial of Bonita G. Lyons, a co-defendant) petitioner Langdon W. Chance was brought before the court for sentencing. He requested leave to withdraw his plea of guilty for the express reason that at the time he entered his plea, he did not know that the habitual criminal act would be invoked, and thought that his sentence on the burglary charge would be not less than five nor more than ten years. The court refused to grant him leave to withdraw his plea of guilty. The county attorney then introduced certified copies of journal entries of two prior convictions of Langdon W. Chance. These were shown to petitioner’s counsel and received without objection. Mr. Chance, in answer to questions by the court, stated that he had served three years on the sentence from Federal Court, and eighteen months on the conviction from Labette County. The court found that he had been convicted of the two prior felony offenses, and sentenced him to be confined in the State Penitentiary for a period of fifteen years, under G. S. 1957 Supp., 21-520 and 21-533, and G. S. 1949, 21-101 and 21-107a.
“d. The prior conviction of Langdon W. Chance in Federal Court, and the certified copy of the record thereof, are regular and no question in that regard is raised herein.
“e. The journal entry of judgment, entered in the District Court of Labette County, Kansas, on April 9, 1963, recites:
“ ‘Thereupon, the Court inquired of the Defendant if he had counsel to represent him. The Defendant stated he did not have counsel and did not ■desire to have the court appoint counsel to represent him, and voluntarily .signed his written waiver of appointment of counsel.’ The journal entry does not contain a finding by the court ‘that the appointment of counsel over his ■objection will not be to his advantage’ as then required by G. S. 1949, 62-1304.
“f. Sometime prior to January 8, 1959, and within six months from the date of sentence, Langdon W. Chance filed in the office of the Clerk of the District Court of Linn County a Notice of Appeal and a Motion for Transcript. The Notice of Appeal contained no proof of service, and was returned to petitioner. The Motion for Transcript was denied by the District Judge on January 8, 1959; the Order of the Court, filed January 16, 1959, contains a finding that it appears to the court ‘that there is no merit to this attempted appeal and that the same is purely vexations.’
“g. No Notice of Appeal was served upon the County Attorney; no proof of service was filed, nothing further was filed by petitioner in this court until June 26, 1961, when petitioner filed his Motion for Complete Trial Records (for use in a habeas corpua proceeding,) which motion this court denied.
“Conclusions of Law
“6. This is a civil action and the burden of proof is upon the petitioner to make out his case by a preponderance of the evidence, and his unsupported assertions, denied by the respondent, are not sufficient to satisfy this burden. This has long been the rule in Kansas in habeas corpus cases (Uhock v. Hand, 182 Kan. 419 [320 P. 2d 794] at 426), and is equally applicable to hearings under Section 60-1507 of the Kansas Code of Civil Procedure. Furthermore, it is made expressly applicable by Supreme Court Rule No. 121 (g), wherein it is said:
“‘The movant has the burden of establishing his grounds for relief by a preponderance of the evidence. The uncorroborated statements of the movant shall be insufficient to sustain the burden of proof.’
“7. It has never been the rule in Kansas that a defendant in a criminal action must be apprised by the State prior to conviction that the State intends to invoke the habitual criminal act. The rule followed in (sic) that a person convicted of a felony should ordinarily be timely apprised that an increased sentence will be demanded under the habitual criminal act between the time of the conviction and sentencing, in order that he may show cause, if any he can, why the act should not be invoked and a higher penalty imposed. The evidence in this case does not disclose that petitioner was advised of the State’s determination to invoke the act until shortly prior to sentencing nor that he was given an opportunity to examine the certified copies of the journal entries before they were received in evidence; however, petitioner was represented at the hearing by experienced trial counsel. The certified copies of journal entries of former convictions were handed to his counsel for inspection before they were offered in evidence to the court. No doubt his counsel fully understood the purpose of the evidence. No objection was made when this evidence was introduced on the ground that petitioner had not been notified a reasonable time prior thereto that the habitual criminal act was to be invoked, or for any other reason. The petitioner freely admitted his prior convictions, acknowledged that he had served some four and one-half years in penal institutions under those earlier sentences, and he has: made no objection to the certified copies introduced with the exception of his objection to the order of the Labette County District Court, which will be considered in the ensuing paragraph. Petitioner had able counsel appointed to appear for him at this hearing, who had adequate opportunity to examine the entire records. It would appear that it would not have served any useful purpose had the court deferred sentencing for a period of ten days after petitioner was first notified that the habitual criminal act was about to be invoked. Petitioner has given this court no indication that even if afforded an opportunity at this time, he could successfully refute the evidence of his former felony convictions (see State v. Messmore, 175 Kan. 354 [264 P. 2d 911]; and Johnson v. Crouse, 191 Kan. 694 [383 P. 2d 978]). The court concludes that petitioner was not prejudiced due to the failure of the State to advise him that the habitual criminal act would be invoked prior to the entry of his plea of guilty, or prior to the day of sentencing.
“8. The journal entry of conviction entered by the District Court of Labette County contains no recital of a finding by the court that the appointment of counsel over petitioner’s objection would not be to his advantage; but the order also contains no finding which would indicate that such finding was; not made. The statute, G. S. 1949, 62-1304, also contains a provision requiring a record of such proceedings to be made by the court reporter, which shall1 be transcribed, filed and made a part of the files and records in the cause. Since district judges, like other citizens, are presumed to know the law, it is presumed that such a jurisdictional finding was in fact made by the District Court of Labette County. If made, the same may be shown by the stenographic transcript or may be corrected by a nunc pro tunc order of that court if no express finding was made in the record (see Ramsey v. Hand, 185 Kan. 350 [343 P. 2d 225; certiorari denied, 362 U. S. 970, 4 L. Ed, 2d 901, 80 S. Ct. 956]). A direct attack upon the judgment of the District Court of Labette County is presently pending in that court, according to the testimony of the petitioner, and remains undetermined. While the matter is pending undetermined in the Labette County District Court, this court should not in a collateral proceeding attempt to determine the validity of the action taken by the Labette County District Court. If petitioner is successful in his direct attack upon the judgment in Labette County District Court, the matter can again be raised in this court by a subsequent motion, and leave is granted to file such successive motion in the event of such determination.
“9. Petitioner’s complaint with reference to the trial court’s denial of his motion for a transcript and complete trial records, and his complaint in regard to the action of the clerk in returning to him his notice of appeal, have already been determined by the Supreme Court of the State of Kansas in State v. Chance, 190 Kan. 661 [378 P. 2d 11] at page 663, where it is said:
“ ‘The defendant has injected into this appeal his complaint of the district court’s denial on January 8, 1959, of his motion for a transcript and complete trial records, and contends he was denied the right to an appeal from his conviction and sentence. The record does not support the contention. As we have seen, the defendant’s notice of appeal of December 19, 1958, was timely filed, but there was no service upon the county attorney nor proof of service filed with the clerk of the district court, hence the notice was insufficient to perfect his appeal to this court. . . . That béing the case, the district court was not required to order the county to furnish the defendant a transcript of the proceedings of the trial. . . .’
“10. Defendant was not represented by counsel when he appeared before the justice of the peace for his preliminary examination. His complaint in this regard is without merit. He lost none of his rights by waiving his preliminary examination; he entered no plea before the justice of the peace; and nothing said or done in justice court was used against him upon his trial in the district court. As is pointed out in State v. Daegele, 193 Kan. 314 [393 P. 2d 978, certiorari denied, 379 U. S. 981, 13 L. Ed 2d 571, 85 S. Ct. 686] at page 316, a preliminary examination is not a trial and while a defendant has the right to be asissted .by counsel at the preliminary examination, there is no statute requiring the appointment of counsel in such a proceeding and failure to appoint counsel at a preliminary examination is not error.
“11. The court concluded that the motion is without merit, and relief is denied. The clerk will mail certified copies of this memorandum to the petitioner; his attorney; and the county attorney.
“Dated at Mound City, Kansas, this 25th day of November, 1964.”
After a careful and extended analysis of the foregoing memorandum decision we are convinced it (1) contains accurate factual conclusions supported by the record; (2) cites the law when viewed in the light of the existing facts; (3) assigns sound and Controlling reasons for denying petitioner’s motion to vacate and set aside the prior judgment and sentence imposed against him in the Linn County criminal action; and (4) fully and completely answers all questions raised, and arguments advanced with respect thereto, by the parties on appellate review regarding the propriety of the ruling on such motion.
In view of the foregoing conclusions we know of no sound reason why our reports should be burdened with extended discussion and consideration of contentions which have already been correctly disposed of by the trial court through the medium of a comprehensive decision such as has been heretofore fully quoted. Therefore we adopt such decision and, based on what is stated and held therein, hold that under the confronting facts and circumstances the district court’s action in denying petitioner s motion to vacate and set aside his criminal judgment and sentenoe must b,e upheld.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is an appeal from an order denying relief sought pursuant to K. S. A. 60-1507. It appears that appellant, pursuant to a complaint duly made in the city court of the city of Hutchinson, was arrested by warrant dated April 27, 1964, charging him with burglary in the second degree, and that on April 28, 1964, he was brought into that court at which time he pleaded not guilty to the charge and requested a court-appointed attorney. On April 30, 1964, appellant, being present in person and by his attorney, Albert S. Teed, waived his preliminary hearing and was bound over to the district court of Reno county, Kansas, for trial. On May 4, 1964, he appeared in the latter court, being represented by Mr. Teed, his court-appointed attorney, and he pleaded guilty to the offense charged, and, the prosecution having offered into evidence an original journal entry dated December 5, 1957, showing appellant’s conviction in the same court of a like offense, was sentenced to the state penitentiary as an habitual criminal. While there confined pursuant to this sentence appellant commenced this proceeding seeking to vacate and set it aside. The trial court appointed another attorney for appellant, granted a hearing at which appellant offered evidence, and thereafter denied the relief sought, from which order this appeal is taken.
At the hearing the appellant testified substantially as follows:
“That he is 24 years of age and had lived in Hutchinson approximately 15 years; that he was divorced; that he had a high school education; that on April 25, 1964, he was arrested at the Moose Club on North Lorraine in Hutchinson, Kansas, by the Hutchinson Police Department; that he was ‘cuffed’ and searched at the scene and taken to the police station Sunday morning; that he was drunk at the time of his arrest, which was at approximately 3:00 A. M. Later, and at about 8:00 A. M., Detectives Sumner and Mangels, of the Hutchinson Police Department detective staff, came to the station to question him; that he was sick from the effects of alcohol but sober at the time. The detectives questioned him about the burglary and asked him about other burglaries that had occurred in and around Hutchinson. He wouldn’t give them any information about anything. They asked him to sign a statement and to ‘cop out’ to other burglaries for several hours. He then wrote a statement in his own handwriting and signed the same in the presence of Detective Sumner. The defendant testified that he requested counsel and was told that he could make a phone call after the statement was signed.
“On Monday morning he called a local attorney, Mr. Bill R. Cole, Hutchinson, Kansas, and Mr. Cole asked him for a sum of money, that he did not have, for representation. He then called DeAnn DeHart, his girl friend. Detective Sumner told him ‘there will be time for a lawyer later.’ He was then transferred to the Reno County Jail and counsel was appointed for him either that day or the next; that Detective Sumner told him ‘what you say might be used against you, but let’s get this statement signed’; that Detective Sumner did not mention the penalty for the crime he was charged with or the habitual criminal act; that he, the petitioner, had no knowledge of the habitual criminal act before entering his plea of guilty; that Detective Sumner told him there was the possibility of a parole; that he knew that a conviction for burglary carried a penalty of 5 to 10 years, and that he would be charged with second degree burglary; that he would not have plead guilty if he had known about the habitual criminal act. Defendant admits he plead guilty to a prior charge of burglary, second degree; that he did 15 months in the Kansas State Industrial Reformatory on that offense and did 13 months on a 2-year parole and was released from parole. Defendant does not deny this prior conviction. . . . Detectives Mangels and Sumner of the Hutchinson Police Department talked to the defendant on Sunday. They told him he had only one charge against him and there was, in fact, only one charge filed against him. They made no threats, and informed him that any statement he made would be used against him. He cannot remember whether or not he was advised of his right to counsel. The defendant is shown and identifies his statement, dated April 26, 1964, at 8:50 A. M., which statement shows on its face that the defendant was advised in writing of his right to counsel.
“The defendant was taken before Judge Bryan Woodson of the City Court, Hutchinson, Kansas, on April 28th, and on April 30, 1964, he waived preliminary hearing but does not recall whether or not he had counsel . . . no mention was made of the habitual criminal act . . . Mr. Teed told him, prior to entering a plea of guilty, that they might try to give him twice as much time, but he would have to hope for the best.”
Another witness called by appellant testified that she was his girl friend and that he called her the day after his arrest and told her where her car was and that he was charged with burglary; that she witnessed the signature of appellant to a consent to let the officers search his apartment; that appellant willingly signed such consent. Mr. Teed, a member of the Reno County Bar, testified on behalf of the appellant that he was appointed to represent appellant on April 29, 1964, and that although he did not discuss the habitual criminal act with the county attorney, he did advise appellant that by reason of the fact he had had previous convictions the habitual criminal act could probably be invoked but he did not know; appellant told him he had been paroled on a charge of burglary in 1957 and that the parole was later revoked and appellant had served a term in the state industrial reformatory.
It was stipulated that appellant was represented by counsel at the time of his waiver of preliminary hearing on April 30, 1964, but that he was not represented by counsel upon his initial appearance on April 28, 1964, before the examining magistrate.
Upon this showing the trial court made findings of fact specifically finding that the burden of proof had not been sustained by appellant and that no constitutional rights had been violated and it denied the relief sought.
On the day following this hearing, it appears that the trial court was apprised in some manner that the appellant desired to make application for a rehearing and appellant was brought before the trial court again and asked to state his reasons for rehearing at which time the following occurred:
“The Defendant: I haven’t had a chance to discuss it with Mr. Hess, so actually I was wanting to discuss it with him before I went into it any further, but I haven’t had any chance to talk to him since I was in court yesterday. On this rehearing, it would be because of failing to inform me of the double up charge that was brought against me, and also my attorney, Mr. Teed, failed to notify and advise me of the charges, and actually nothing against Mr. Teed, but one thing I would want to use would be having incompetent counsel during the proceedings.
“The Court: Well, it is the court’s opinion that you had fully brought out the failure to be informed of the imposition of the habitual criminal act, that was fully brought before the court, and you had an opportunity to say anything that you desired in regard to Mr. Teed. Do you have any evidence of Mr. Teed’s incompetency other than your uncorroborated statement?
“The Defendant: No.
“The Court: Of course the law places the burden on you to go beyond that, as I indicated in my remarks yesterday. I see no new ground why you should be granted a rehearing, and the application for rehearing will be denied.”
Mr. Hess, the attorney previously appointed by the trial court to represent appellant, was not present at this latter appearance.
In addition to the abstract of the record and the brief prepared and filed by appellant’s appointed counsel upon this appeal (who was also appointed counsel in the criminal action) this court has before it a lengthy handwritten copy of what is designated appellant’s “Statement of Points” and a brief containing both citation of authority and argument, together with a purported factual statement of what occurred, accomplished by appellant in his own handwriting, which documents at the request of counsel for appellant have been considered by this court in connection with this appeal.
Appellant urged in the hearing before the trial court, and urges here, that certain constitutional rights were denied. First, he alleges that he was without counsel at his arraignment, but the record conclusively indicates the contrary. Appellant was represented by counsel both at the time of his waiver of preliminary hearing, and at the time of his arraignment in district court. The term arraignment is sometimes used loosely. Although not explicitly defined by statute, it refers in general to the first step in the progress of a trial wherein the accused is called to the bar of the court; his identity established; he is informed of the charge against him and called upon to plead to that charge (22 C. J. S., Criminal Law, §406; 21 Am. Jur. 2d., Criminal Law, §452). It would appear that what appellant is complaining about is the fact that when he was initially brought before the magistrate issuing the warrant for his arrest upon the charge of burglary he was without counsel. The appearance before an examining magistrate—in this case the city court of the city of Hutchinson—upon return of a warrant pursuant to K. S. A. 62-602 in a felony case is not properly termed an arraignment, there being no authority in such magistrate to arraign one charged with a felony (State v. Talbert, 195 Kan. 149, 402 P. 2d 810, certiorari denied, 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143, and we are not aware of any authority for or constitutional right to the assistance of counsel at this point under the circumstances shown. At this initial hearing the record does indicate appellant “was duly arraigned by having the charge distinctly read to him, and being required to plead thereto, pleaded not guilty.” It was proper for the accused to be informed of the charge against him and for that fact to be recorded, but the balance of the procedure was improper and should not have been followed. However, this purported arraignment and plea could not in any wise prejudice the rights of the appellant especially in view of the fact he did plead not guilty (State v. Talbert, supra, State v. Jordan, 193 Kan. 664, 396 P. 2d 342, cert. den. March 1, 1965, 380 U. S. 920, 13 L. ed. 2d 805, 85 S. Ct. 917).
Appellant complains he did not have notice of an intent to invoke the habitual criminal act against him. The record clearly discloses appellant’s attorney told him of the provisions of the habitual criminal act and the possibility of its being invoked against him in view of an undisputed previous conviction, and in his handwritten brief he further says that his attorney stated to him that “in all probability the habitual criminal action could be invoked.”
Reasonable notice of an intent to invoke the provisions of the habitual criminal statute is required, but no particular form thereof is necessary. The reason for such notice to be given is to afford an opportunity for a full and complete hearing as to whether the accused is properly subject to be sentenced under the act. This is a right which is subject to waiver.
In Browning v. Hand, 284 F. 2d 346 (1960), cert. den. 369 U. S. 821, 7 L. ed. 2d 786, 82 S. Ct. 833, it was said:
“One convicted of a felony in Kansas is entitled to notice of the hearing held to determine whether he is subject to the provisions of the habitual criminal statute, and due process requires notice. This is, however, a right which can be waived. [Citations] Assuming that prior notice of the hearing was not given, the defendant was present at the hearing with his attorney, and no contention is made that he did not have full opportunity to be heard on all matters under consideration and to controvert the allegation that he had been convicted of previous felonies which would make him subject to the penalties of the habitual criminal statute. The time for complaint was then, not now.” (p.347.)
Here it appears evidence of the previous conviction was regularly received by the trial court at a time when appellant was present with his attorney and, being afforded the right of allocution, he made no objection (his brief states he admitted the previous conviction at the time of his sentencing) although he had previously been advised by his attorney of the provisions of the habitual criminal act and that the same might be invoked against him. Under such circumstances we hold there was no denial of constitutional rights (See Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978).
Appellant urges he had no counsel at the time he appeared the
second time before the trial court and asked for a rehearing, which fact is conceded. The entire record of that proceeding is before us. It would appear that out of an abundance of caution the trial judge gave appellant another opportunity to be heard. It seems clear that appellant had nothing new to present other than alleged incompetency of counsel and appellant specifically stated he had nothing to present on this other than his uncorroborated statement. The court was not in any event required to act at all as it was not obliged to entertain a second or successive motion for similar relief on behalf of the same prisoner (K. S. A. 60-1507 [c]; see, also, rule No. 121 [d] of this court). Assuming, arguendo■, that his application might have been treated as a motion for relief on some other ground, the court certainly did not err in not taking further proceedings as it has been repeatedly held that the burden of showing incompetent and inadequate counsel to the extent necessary to overcome the presumption of regularity of a conviction is not sustained by the unsupported and uncorroborated statements of the one convicted (Trugillo v. Edmondson, 176 Kan. 195, 270 P. 2d 219; State v. Calhoun, 194 Kan. 378, 399 P. 2d 886; State v. Richardson, 194 Kan. 471, 399 P. 2d 799; Huston v. State, 195 Kan. 140, 403 P. 2d 122). Moreover, we have gone over the entire record before us, including the purported factual statement by appellant in his handwritten brief, and we find nothing indicating inadequate representation. This latter instrument contains contradictory and inconsistent factual allegations regarding counsel, e. g., in it counsel is charged with incompetency in failing to inform appellant of the habitual criminal act, and yet he states that his attorney did tell him about the habitual criminal act and he claims his plea of guilty was induced by the fact he believed he would be sentenced under it if he did not plead guilty. The existence of this character of allegations lends support to the soundness of the principles enunciated in the cases last above cited.
The record before us shows full compliance with the statutory requirement of K. S. A. 62-1304 upon arraignment and sentencing in district court. Further it reflects faithful service by court-appointed counsel at appellant’s preliminary hearing, upon the hearing of the motion to vacate the sentence and upon this appeal. In justice to appellant’s counsel here, a respected, reputable member of the Reno County Bar, and to all concerned, it should be said that appellant also states in his brief that he believes his attorney “to be a man of integrity and honesty.”
Appellant claims he was deprived of the assistance of counsel at the time he was interrogated and when he made a statement. It appears that appellant was arrested at the scene of the alleged burglary at about 3:00 a. m. the morning thereof at which time he says he was drunk, and that he was questioned a few hours later. He states in his brief he was told anything he said would be used against him, and it also appears he was advised of his rights to counsel and that this was done prior to the making of any statement. The nature of any statement made does not appear. However, the mere fact an accused voluntarily makes a statement in the absence of counsel admitting the commission of a crime does not amount to a denial of constitutional right to assistance of counsel (Powers v. State, 194 Kan. 820, 402 P. 2d 328). Moreover, the rule is well-established that a judgment of conviction of crime carries with it a presumption of regularity, and where one convicted of a crime attacks such judgment on the ground that his constitutional rights were violated, he has the burden of proof to establish such fact by a preponderance of the evidence, and such burden is not sustained by unsupported and uncorroborated statements by the plaintiff (Huston v. State, supra, and cases cited therein), and the trial court found against him on this issue.
Appellant raises various other questions in his brief, all of which we have considered. Suffice it to say the record reveals appellant had a full evidentiary hearing, the trial court found specifically against him on the justiciable issues and we discern no error in that action. The trial court’s judgment is affirmed.
approved by the court.
Fontron, J., not participating. | [
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Opinion of the court delivered by
Wertz, J.:
This case has been considered by the court, and the judgment is affirmed. Since the action involves a pressing local public question, the court is announcing its decision at this time in order that all parties to the litigation may be advised. A formal opinion will be filed when prepared. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
This action was brought by U. O. Prickett to recover the value of his cow, which was killed by a passing-freight train of the defendant, near to the railroad station at Elmdale. The cow was struck and killed not far from the end of the siding which is used in connection with the station, and is about 2,000 feet long. The plaintiff alleged that the cow was killed through the negligence of the defendant in operating its train, and also in failing to inclose its track with a lawful fence. The jury returned a verdict in favor of the railroad company, and the plaintiff is here alleging error.
The principal objection made, is against the charge of the court. The fifth instruction was as follows:
“If you should find from all the evidence in this case that the defendant had a station at Elmdale at the time this cow was killed, which was used by the public as a railroad station for receiving and sending away freight, and for getting on and off defendant’s trains, and that it was necessary for defendant’s business with the public that the defendant should have a side track at such station, and that it did have a side track and such station at said time, and that this side track at such station was crossed by one or more public roads which the public traveled over; and if you should further find that such side track was not longer than it was necessary for it to be on account of the business transacted at said station by the defendant; and if you should further find that no portion of said side track could be inclosed by a fence without cattle-guards being built across su ch side track; and if you should further find that owing to the character of the business done at said station by the defendant on such side track, that cattle-guards could not be built across any part of such side track without endangering the lives or limbs of such of defendant’s employés as might from time to time be required to use such side track iu the operation of defendant’s trains and cars thereon, then and in such case you are instructed that defendant was not re quired to inclose said side track or any portion of it with a fence, even although such side track might occupy in length a greater strip of land than would be reasonably necessary for the use of the defendant as station grounds. And you are further instructed, that in such case if the plaintiff’s cow was killed at such station within the limits occupied by such side track, that then and in such case the plaintiff cannot recover in this action because of any failure of the defendant to inclose such side track with a lawful fence.”
The exemption stated in the latter part of the instruction, relieving the railroad company from fencing the track, is too broad, and cannot be upheld. The statute imposing upon railroad companies the duty of fencing their tracks in terms contains no exceptions. There is therefore no exemption from the duty imposed by the terms of the statute except such as may arise by implication from public necessity or the superior obligation of the railroad company to the public under other statutes. (Railroad Co. v. Jones, 20 Kas. 527; U. P. Rly. Co. v. Dyche, 28 id. 202; A. T. & S. F. Rld. Co. v. Shaft, ante, p. 521; same case, 6 Pac. Rep. 908.)
In the latter case Mr. Justice 'VALENTINE stated the rule under the authorities to be :
“That railroads are not absolved from complying with the express terms of the statute requiring them to inclose their roads with good and lawful fences, except where some paramount interest of the public intervenes, or some paramount obligation or duty to the public rests upon the railroad companies, rendering it improper for them to fence their roads.”
It has accordingly been held by most of the courts where the question has been raised, that public necessity requires that depots or stations should be unfenced. It would seem, too, that so much of the grounds and side tracks connected with the depot as is reasonably necessary for the business of the public with the railroad company at the station should be free of access, and unobstructed by fences or cattle-guards. And therefore where fences and cattle-guards would interfere with the public convenience, or would hinder or prevent the railroad company from properly serving the public, the statute requir ing the fencing of railroads will to that extent be inapplicable. (See the numerous cases cited upon this point in the case of A. T. & S. F. Rld. Co. v. Shaft, supra.) But in the instruction quoted, the judge of the district court did not limit the exemption to public necessity or convenience. His decision would relieve the company from fencing the track where the fences would interfere with the interest or convenience of the company. And it further implies that a greater quantity of land than is necessary in the transaction of its business with the public may be left unfenced. This ruling is in conflict with the views herein expressed, and with the decision of the court in the case of the A. T. & S. F. Rld. Co. v. Shaft, supra, and must be held erroneous.
Another objection is made by the plaintiff, to that part of the charge of the court in which the jury were instructed that if the cow went upon the track and was killed at a point where the railroad track is not required to be fenced, they could not find for the plaintiff unless there was gross negligence on the part of the defendant or its employés which resulted in the killing of the cow. This was error. It was true the plaintiff in this case permitted his cow to run at large, but under the circumstances stated, and within the decisions of this court, the railroad company is held to the exercise of reasonable care, and is liable for ordinary negligence; and the mere fact that the plaintiff permitted his stock to run at large does not constitute such negligence as will defeat a recovery. (A. T. & S. F. Rld. Co. v. Shaft, supra; Mo. Pao. Rly. Co. v. Wilson, 28 Kas. 637; St. J. & D. C. Rld. Co. v. Grover, 11 id. 302; Smith v. C. R. I. & P. Rld. Co., 34 Iowa, 506; Davis v. B. & M. Rld. Co., 26 id. 549; Flint & P. M. Rly. Co. v. Lull, 28 Mich. 511;. Ewing v. C. & A. Rld. Co., 72 Ill. 25; Bellefontaine Rly. Co. v. Reed, 33 Ind. 476; Kerwhacker v. C. C. & C. Rld. Co., 3 Ohio St. 172; Cressly v. Northern R. Corp., 15 Am. & Eng. Rld. Cases, 540, and note, 544.)
No reversible error is seen in the rulings of the court upon the admission of testimony; but on account of the errors pointed. oat, the judgment of the district court must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
YALENTINE, J.:
The only question presented to this court for determination is, whether the following bill of particulars sets forth facts sufficient to constitute a cause of action. The amended bill of particulars (omitting court and title) reads as follows:
“Now comes the above plaintiff, and for cause of complaint against said defendant says, that said defendant is justly indebted to him in the sum of seventy-five dollars, as follows, to wit: That on or about the 21st day of December, 1883, one Frank Baker, a son of said defendant, and a minor, did negligently and carelessly fire and shoot off a gun in the direction of the stable of said plaintiff; that said stable contained one mare pony, the property of said plaintiff; that said shot so fired and shot off penetrated the said stable, and struck and killed said mare, said property of said plaintiff; that said mare was of the value of $75 — thereby damaging said plaintiff in the sum of $75.
“ Plaintiff further says, that after said death of said mare, said plaintiff requested said defendant to pay for said mare so killed; that-agreed so to do, but has failed so to do; plaintiff therefore says that said defendant voluntarily and of his own free will did, immediately after the injuries and damages complained of hereinbefore, come to plaintiff, and said he would pay this plaintiff the full value of said mare so killed by his said son, thereby ratifying and confirming the said acts of his son Frank, and thereby becoming responsible to plaintiff for the damages sustained by plaintiff. Therefore, plaintiff prays judgment against said defendant for the sum of $75 and costs.”
Under the authority of the case of Edwards v. Crume, 13 Kas. 348, the defendant below (plaintiff in error) is not liable, unless by his subsequent promise and supposed ratification he has made himself liable. In that case it is held as follows:
“Where a minor son who lives with his father and is under his father’s control commits certain wrongful acts, but where the said acts have not been authorized by the father, are not done in his presence, have no connection with the father’s business, are not ratified by the father, and from which the father receives no benefit, the father is not liable in a civil action for damages for such wrongful acts.”
See also Schouler on Domestic Relations, 361. The promise made by the defendant, to pay the plaintiff for the mare killed is not valid. It was a collateral undertaking, made without consideration, and was not in writing, (Sec. 6, Statute of Frauds.) And there was no ratification of the defendant’s son’s acts, except such as resulted from the promise itself; and this in fact was no ratification at all. The defendant might have disapproved the son’s acts wholly and entirely, and condemned them severely, and yet promised to pay the value of the mare killed. The defendant had nothing to do with the killing of the mare, directly or indirectly, proximately or remotely; it was not done in his name, nor in his presence, nor authorized by him, nor had it any connection with his business, nor was it any benefit to him, nor has he received any benefit therefrom, or from any transaction connected therewith, or with this case, nor has the son’s liability been relinquished or released, nor has the father by mutual agreement of the parties been taken in the place of or substituted for the son. Under the circumstances, the son only is liable, and not the father.
The judgment of the court below will- be reversed, and the cause remandedfor further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over the validity of testamentary devises which were to take effect following the expiration of certain life estates.
It should be noted at the outset of this opinion that the appellants have challenged the right of the appellees to be heard in the court below and also their right to be heard on appeal because of alleged procedural errors, delays and acquiescence. We have not ignored the procedural questions raised but, after careful consideration, have reached the conclusion that the best interest of the litigants will be served if we proceed immediately with a consideration of the appeal on the merits.
George W. Savage died on October 17, 1936, leaving a will dated July 10, 1935. The will made provision for the payment of his just debts and funeral expenses; gave all of his personal property to his wife, Mary Jane Savage; gave his wife a life estate in all of his real estate, and provided further:
“4. After the death of my wife, it is my will that the income from all of said real estate, after the payment of taxes and necessary upkeep and expenses of the property from the date of the death of my said wife until the date of the death of my son, Ernest E. Savage, be divided share and share alike between my sons, Ernest E. Savage, and Roy W. Savage, and my daughter, Grace M. Helt. And I hereby appoint my son, Roy W. Savage, as Trustee with authority to collect the rents and profits from said real estate during said time and pay the taxes and other necessary expenses incident to the handling of said property and divide the proceeds among said parties as aforesaid.
“5. After the death of my said son, Ernest E. Savage, it is my will and I hereby give, devise and bequeath all the remainder of my said property to my son, Roy W. Savage, and my daughter, Grace M. Helt, share and share alike, upon their paying to my granddaughter, Doris Bloomfield, the sum of Fifteen Hundred Dollars, ($1500.00), and I hereby give and bequeath to my said granddaughter the said sum to be paid by my son,. Roy W. Savage, and my daughter, Grace M. Helt, within a year after the death of my said son Ernest E. Savage, and upon making said payment the full title to my said real estate shall vest in my said son, Roy W. Savage, and my daughter, Grace M. Helt.”
The will was admitted to probate on January 9, 1937. The administration was closed March 4, by an order which directed that the appointment of a trustee be held in abeyance during the life tenancy of the widow.
Following the life estate of the widow, the court appointed Roy W. Savage trustee. He filed his reports, gave notice thereof, disbursed the funds and paid expenses on the property out of the income from the property until his death. Thereafter, his widow, Mayme B. Savage, under direction of the court acted as trustee. Following the death of Roy W. Savage his heirs filed then- action to determine the descent of Roy’s property, which they claimed included a oné-half interest in the holdings listed in the will of George W. Savage. Plaintiffs, appellants herein, on the 16th day of February, 1962, filed an action for construction of the will of George W. Savage under the Declaratory Judgment Act. (G. S. 1949, 60-3127.)
The plaintiffs alleged in their petition the insufficiency of paragraph 4 of the will to devise the real estate to the trustee and to carry out the purposes of the alleged trust, and further alleged that paragraph 5 of the will created a condition precedent and failed to vest the title in defendants in violation of the rules against perpetuities. The prayer of the petition requested that paragraphs 4 and 5 of the will be declared void and that the real estate be assigned to the heirs of the testator under the law of descent and distribution.
The trial court found that the language in paragraph 4 of the will was sufficiently specific to constitute a legal device of the real estate to the trustee; that under the language of the will the remainder interests of Roy W. Savage and Grace M. Helt became vested at the time of the death of the testator, and that the devise to Roy and Grace was not void as violating the rule against perpetuities merely because it was conditioned upon the payment of $1,500.00 to Doris, the granddaughter.
Judgment was rendered for defendants and plaintiffs have appealed.
Although immaterial to the determination of the issues before us, it is noted that Ernest E. Savage died on October 5, 1965, and the administrator of his estate, W. R. Mathews, was substituted as one of the appellants.
It would appear that for the purpose of determining this controversy the thirteen points upon which appellants rely for reversal may be reduced to two simple questions:
1. Is the language of paragraph 4 of the will sufficient to create a valid trust?
2. Did the language of paragraph 5 of the will create a vested remainder in Roy W. Savage and Grace M. Helt?
The appellant contends that the language of paragraph 4 of the will did not create a legal devise of the real estate to the trustee but merely created a bailee or agent.
We cannot agree. The language of the will, after designating the beneficiaries of the income from the real estate, definitely appointed “my son, Roy W. Savage, as Trustee” and gave him authority over the rents and profits such as is usually held by a trustee. Under paragraph 5 of the will the trust terminates on the death of Ernest E. Savage.
The appellant calls our attention to the rule announced in 54 Am. Jur., Trusts, § 34, p. 45, which reads:
“It is essential to the creation of an express trust that the settlor presently and unequivocally make a disposition of property by which he divests himself of the full legal and equitable ownership thereof. . . .”
We have no quarrel with the rule as above announced, however, its application is doubtful where the trust is not to take effect until after the death of the settlor.
A fundamental essential of any trust is a separation of the legal estate from the equitable estate and the beneficial enjoyment. The rule that the same person cannot be at the same time sole trustee and sole beneficiary of the same identical interest and that a trust cannot exist where the legal and sole beneficial interests were in the same person was recognized in Johnson v. Muller, 149 Kan. 128, 86 P. 2d 569, but at the same time the court held:
“Although there be no express devise to a person named as trustee, if it clearly appears from the nature of the duties to be performed that the taking of an estate is necessary, the intention of the testator will be presumed and an estate in the trustee will vest by implication.” (Syl. 4.) (See, also, In re Estate of Sheets, 175 Kan. 741, 267 P. 2d 962.)
Arriving at the intention of the testator from a consideration of all portions of the instrument, as we are bound to do (In re Estate of Roberts, 190 Kan. 248, 373 P. 2d 165), we think it clear from a reading of the will the testator intended his named trustee or his successor to- take and hold the real estate and perform the duties imposed upon the trustee by paragraph 4 of the will until the death of Ernest E. Savage.
The contention of appellee that paragraph 5 of the will did not create a vested remainder presents a more difficult problem.
Rules applicable to the examination, interpretation and construe tion of wills have been repeatedly considered and applied in our decisions. This court is committed to the rule of favoring vested rather than contingent remainders and no remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested. Many of our decisions setting forth the above rule may be found in Bunting v. Speek, 41 Kan. 424, 21 Pac. 288; Purl v. Purl, 108 Kan. 673, 197 Pac. 185; Votapka v. Votapka, post; Buxton v. Noble, 146 Kan. 671, 73 P. 2d 43; Johnson v. Muller, supra; Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177; In re Estate of Schnack, 155 Kan. 861, 130 P. 2d 591; In re Estate of Ellertson, 157 Kan. 492, 142 P. 2d 724; In re Estate of Rinker, 158 Kan. 406, 147 P. 2d 740; Cramer v. Browne, 159 Kan. 423, 155 P. 2d 468; Calkin v. Wallace, 160 Kan. 760, 165 P. 2d 224; Epperson v. Bennett, 161 Kan. 298, 167 P. 2d 606, Anno. 166 A. L. R. 816; In re Estate of Johnson, 175 Kan. 82, 259 P. 2d 176; In re Estate of Sheets, supra; In re Estate of Paulson, 188 Kan. 467, 363 P. 2d 422.
With these rules in mind we will carefully examine the provisions of paragraph 5. There are three somewhat separate provisions contained therein: First—Upon the death of Ernest there is a devise of the real estate to Roy and Grace upon their paying a granddaughter $1,500.00; Second—a gift to the granddaughter of the $1,500.00 to be paid by Roy and Grace within a year after the death of Ernest, and Third—upon making the payment to the granddaughter full title to the real estate was to vest in Roy and Grace.
Had the testator intended to make the devise to Roy and Grace contingent upon their paying to the granddaughter the $1,500.00 nothing was added by the second and third provisions. However, the testator made the additions and by the second provision gave the $1,500.00 to the granddaughter in his own right. It was his to give only if it was made a charge against the estate. It was not his to give if the payment of the $1,500.00 was a condition precedent to the title vesting in Roy and Grace because on their refusal the entire plan would fail.
The language of the third provision is not in harmony with language creating a condition precedent. After payment of the $1,500.00 full title was to vest. That leaves the question: what partial title was already vested? We think the answer is—full title was vested subject to a charge or lien of $1,500.00.
In searching for the testator s intent we are also greatly influenced by the fact that there was no provision for the disposition of the estate on the failure of Roy and Grace to pay the $1,500.00. Had the testator intended the real estate to vest in Roy and Grace only if they paid the $1,500.00, it would reasonably be assumed that he would have made other provisions for the vesting of the title to the real estate. The absence of any suggestion that the testator contemplated the failure of the devise indicates a clear intent on the part of the testator to vest the title and make the payment to the granddaughter a charge against the estate. The above reasoning was stressed in Votapka v. Votapka, 136 Kan. 224, 14 P. 2d 732, where the court in distinguishing Crowley v. Nixon, 127 Kan. 178, 272 Pac. 104, relied on by appellant in this appeal, stated beginning at page 226 of the opinion:
“It is conceded that the payments were not made within the time specified in the will, and appellant contends that the case of Crowley v. Nixon, 127 Kan. 178, 272 Pac. 104, is authority for holding that the will created a condition, and until compliance with the condition the estate did not vest. In the Nixon will provision is made for the acceptance of the conditions contained in the will, and it is provided that in the event the devisee fails! to accept tire conditions the executor shall sell the property and make distribution of the proceeds. This was held to be a condition precedent, and upon the failure to make the payment the land reverted to the heirs according to the provisions of the will. It will be noted that there is a clear distinction between the Nixon will and the will under consideration. The testator makes an absolute bequest of the property to the appellee and then provides for the payment of $3,000 to the appellant within one year after the death of tire testator. No provision is made for the acceptance or rejection of the devise and nothing is said about the disposition of the property in the event the appellee fails to accept under the will. There is the absence of any suggestion that the testator contemplated the possibility of the failure of the devise. This indicates a clear intent on the part of the testator to vest the title and make the legacy a charge against the devise.”
We are constrained to hold that the testator made an absolute bequest of the real estate to Roy W. Savage and Grace M. Helt, subject nevertheless to the payment of $1,500.00 to the granddaughter, Doris Bloomfield, which the testator intended should be a charge against the real estate.
The title to the real estate having vested the rule against perpetuities has no application.
The judgment is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a verdict and judgment denying damages for the alleged deprivation of the plaintiffs’ common-law right to direct access to a pre-existing highway.
Plaintiffs own, as tenants in common, a tract of land bounded on the north by U. S. Highway 24 beginning at a point 150 feet east of Rochester Road (North Tyler Street), Topeka, Kansas, thence east 575 feet. The other boundary lines are not material to the controversy.
In September, 1951, defendant condemned certain parcels of real estate lying directly north of the above described land for the purpose of widening U. S. Highway 24. No appeal was taken from the appraisers’ award. Neither were rights of access mentioned in the condemnation proceedings.
The 1953 session of the Kansas legislature enacted K. S. A. 68-1901, et seq., which specifically provided for the designation of controlled access facilities, and for the acquisition, by condemnation, of rights of access facilities, including rights of access, light, air or view.
On November 9, 1955, part of U. S. Highway 24, including the strip north of plaintiffs’ land, was by resolution of the State Highway Commission of Kansas declared to be a controlled access facility and the Right-of-Way Department was authorized to acquire the right-of-way and access rights necessary to effect such a project. In the late fall of 1956, the defendant constructed a frontage road on the land acquired from plaintiffs by condemnation in 1951, lying between the plaintiffs’ land and the through lanes of U. S. Highway 24.
At and prior to the adoption of the resolution providing for the controlled access facilities and the construction of the frontage road there were located on plaintiffs’ frontage land four business establishments holding leases from plaintiffs consisting of a Dairy Freeze Drive-In, a Sinclair Refining Company oil and gas station, a cafe and a Texas Company oil and gas station. Prior to the construction of the frontage road each of the businesses mentioned had direct access to and from U. S. Highway 24.
As a result of the construction of the frontage road it became necessary, in order to gain entrance to said business establishments from the highway and in order to enter the highway from the business establishments, to go to such points as access facilities have been constructed by defendant for such purpose, i. e., at each end of the 575 foot frontage.
The plaintiffs brought an action against the defendant for damages. The petition as amended alleged the facts as above stated and further alleged:
"Although said frontage road between plaintiffs’ property and the through lanes of Highway 24 has long been completed, no condemnation proceedings have been instituted by the defendant, nor has any compensation in any form been paid to plaintiffs for the loss of direct access to the said business establishments located on their said property as herein alleged.”
The prayer was for damages in the sum of $88,750.00.
The defendant answered alleging that plaintiffs had been furnished reasonable, direct and convenient access to and from the four main traveled lanes of U. S. Highway 24 and that the frontage road had been constructed at public expense for the special use and benefit of plaintiffs’ property and that there is no physical barrier separating plaintiffs’ property from the frontage road. The answer further alleged:
“Defendant State Highway Commission has constructed cross-over openings at the east and west ends of plaintiffs’ property for the special use and benefit of plaintiffs and their tenants, permitting thereby convenient and direct •access to or from the four main traveled lanes of U. S. 24 to plaintiffs’ property.
“Defendant State Highway Commission denies that it has taken any property or compensable property rights of plaintiffs, their tenants or lienholders and further denies that it is responsible for, or liable for, depreciation of market value of plaintiffs’ property, if any, at the time of the alleged taking of property or property rights in 1956.”
The issues were tried to a jury which found generally for the defendant. Judgment was entered on the verdict and plaintiffs have appealed.
Although the appellants raise numerous trial errors, the merits of this case will be determined on appellants’ contention that—•
“It was error for the court not to rule as a matter of law that the Defendant (Appellee) acquired the access rights of the Plaintiffs (Appellants) and to direct a verdict in this regard for Plaintiffs (Appellants).”
In support of the above contention the appellants argue that “the construction of a frontage road between a landowner’s property and a pre-existing public highway is the taking of the common-law right of direct access as a matter of law.” Some of our decisions cited by appellants, and which will be considered later, would appear to support their argument. However, it would also appear that controlled access highways, and the necessity therefore, under our modern addiction to increased speed on the highways, has created an entirely new concept not known at the time the common law or case law was developed.
This new concept, which was not fully recognized in our previous decisions, requires a complete review and reappraisal of the correlative rights of the general public and owners of abutting lands where controlled access highways are reasonably necessary to protect the safety and convenience of the traveling public.
Before reaching the main point at issue we should give attention to some procedural matters.
Where the right of eminent domain has not been exercised by the State Highway Commission and an abutting property owner is aggrieved because he feels that his access to a controlled access highway has been unreasonably restricted, the remedy is by way of an action for damages in the nature of a suit on an implied contract. In Dugger v. State Highway Commission, 185 Kan. 317, 321, 342 P. 2d 186, we stated:
“. . . Where the commission has appropriated land or rights therein for state highway purposes without having obtained the title thereto, by formal condemnation or otherwise, the landowner may waive formal condemnation and may sue upon an implied contract for the value of the property taken. This is substantially the rule stated in State Highway Comm. v. Puskarich, 148 Kan. 388, 83 P. 2d 132, which was cited with approval in the subsequent case of Atchison v. State Highway Comm., 161 Kan. 661, 663, 171 P. 2d 287.” (See, also, Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 138; Railroad Co. v. Yount, 67 Kan. 396, 73 Pac. 63; K. C. & S. W. Rly Co. v. Fisher, 53 Kan. 512, 36 Pac. 1004; Hubbard v. Power Co., 89 Kan. 446, 131 Pac. 1182.)
Since the landowner has an adequate remedy at law he cannot proceed by injunction or mandamus to protect himself from the alleged wrongful taking of his access without compensation. (Brookings v. Riverside Drainage Dist., 135 Kan. 234, 9 P. 2d 656.) When the taking is by a governmental agency of the state such as the State Highway Commission the public s credit, with the power of taxation behind it, affords ample security for the payment of any judgment recovered in an action at law on an obligation to make compensation. (Railway Co. v. City of Hiawatha, 95 Kan. 471, 148 Pac. 744.)
In Atchison v. State Highway Comm., 161 Kan. 661, 171 P. 2d 287, it was stated:
“A plaintiff may not invoke the extraordinary writ of mandamus where he has a plain, speedy and adequate remedy available to him in ordinary course in an action at law.
"Where the state highway commission, which has the power of eminent domain, appropriates the land of any person for state highway purposes without having first acquired the title thereto by formal condemnation or otherwise, the commission is under an implied contractual obligation to pay to the owner the reasonable value of the land it took without condemnation.” (Syl. 1 and 2.)
Also in Provident Mut. Life Ins. Co. v. State Highway Comm., 155 Kan. 351, 125 P. 2d 346, in denying injunctive relief, we held:
“In a suit to enjoin the state highway commission from a continuing trespass arising from maintenance of a state highway on, over and across real estate in which the commission had been adjudged previously to have no right or title, it is in the public interest that no• injunction should be granted, but in view of the fact the commission has the power of eminent domain, the court should hear the evidence pertaining thereto and award to the owner and against the commission such sum as the owner is justly entitled to under the facts and circumstances of the case.” (Syl. 3; emphasis supplied.)
In view of what has been said above we are forced to disapprove the decisions in Franks v. State Highway Commission, 182 Kan. 131, 319 P. 2d 535 and Atkinson v. State Highway Commission, 184 Kan. 658, 339 P. 2d 334, which decisions approved injunctive relief as against the State Highway Commission in highway access disputes.
The trial court, by its instructions, left to die jury for its determination whether there was a taking of access such as required compensation. The appellants contend that “the trial courts failure to instruct the jury that the construction of the frontage road in question was the taking of a property right was prejudicial error.”
Although we cannot agree with the conclusion which appellants would reach, we do agree with the legal premise on which they base their conclusion as follows:
“. . . The appellants contend that it was highly prejudicial and clearly error to let the jury decide if there had been a taking. If the appellants did not establish a taking of access rights, there should have been no question whatsoever for the jury to decide. As in any other condemnation case, whether there is a taking of a property right is a question of law, and must be decided by the court. . . .”
The appellee contended that it had the right under the police power to limit or control appellants’ access as it did. Whether or not a governmental agency has exceeded its police power and taken private property for public use is a question of law for the determination of the court under the existing facts and circumstances of the particular case. Not until the trial court determines that private property has been taken for public use is the question of the amount of damages ripe for the determination of a jury.
In all condemnation cases the only question presented for the jury’s determination is the loss to the owner because of the property taken. The fact that there was a taking has been previously determined by the court.
An action to recover damages for the taking of private property for public use is in the nature of an inverse condemnation proceeding. The same rules of law apply to the determination of the right to damages and the measure of damages as in a condemnation proceeding.
In Roberts v. Upper Verdigris Watershed, 193 Kan. 151, 392 P. 2d 914, we held:
“Parol evidence as to intended use is not admissible to vary the extent of the use as stated in the commissioners’ report on appeal from the commissioners’ award of compensation to the landowners.” (Syl. 3.)
and concluded that the trial court erroneously admitted evidence for the jury’s consideration as to the extent of the use, which would reflect on the extent of the property taken.
We must conclude that in an inverse condemnation proceeding a trial court should either instruct the jury that there was a compensable taking or direct a verdict for the defendant.
This brings us to the crux of this controversy.
The appellants contend that the construction of a frontage or a service road between appellants’ property and the pre-existing U. S. Highway 24 constitutes a taking of the common-law right of direct access as a matter of law. Whether we desire to refer to the access rights of an owner of land abutting a highway as “common law rights” or “case made rights” they are rights which have been developed by the courts and not by the legislature.
Regardless of the source of origin there has developed a universal rule that the owner of land abutting on a street or highway has a private right in such street or highway, distinct from that of the public, which cannot be taken or materially interfered with without just compensation. However, the rights of an abutting owner must be subordinated to the right of the public to the proper use of the highway and the right of governmental agencies to enforce proper police regulation. The right is subject to reasonable regulation and restrictions for the purpose of providing reasonable safe passage for the public, but the regulations or limitations cannot be enforced where they unduly limit or unreasonably interfere with the rights of the abutting owners. The established easement which has been used for access purposes cannot be taken without compensation, but, while the entire access may not be cut off, an owner is not entitled to access to his lands at all points in the boundary between it and the highway. If the owner has a free and convenient access to his property and to his improvements thereon, and his means of in gress and egress are not substantially interfered with by the public, he has sustained no compensable loss.
In applying the above recognized rules the difficulty has arisen in determining, under the facts and circumstances of each particular case, just what is free and convenient access and what constitutes substantial interference. It must be understood that the rules were adopted and applied to conventional or land service roads. At the time the rules were developed roads were constructed largely for the benefit of the local property owners as land service roads and for the benefit of the local inhabitants. Speedways, interstate highways, freeways and other thoroughfares for the handling of long distance travel by controlling access were not anticipated. These roads are constructed today to serve the traveling public rather than the local needs of abutting property owners. The rules announced above are too well established to justify extensive citations of authority. A full discussion will be found in Smith v. State Highway Commission, 185 Kan. 445, 451, 346 P. 2d 259. Those wishing to research the development of the rules of law applicable to the right of access to conventional or land service roads may see 25 Am. Jur., Highways, § 154, p. 448; 39 C. J. S., Highways, § 141, p. 1079, and 73 A. L. R. 2d 652.
In considering a new highway concept in connection with rights of access it must be understood that the common-law right to use of highways has not followed an established precedent through the ages. Each era of history has seen a reformulation of highway rights based on changes in commerce and the needs of the landowners and the traveling public.
In early England the King’s Highway was a perpetual right to free passage of the sovereign and his subjects over another’s land. The colonial governments did not follow the English concept. The early Americans were more interested in rural activities. Farm animals needed to be controlled by enclosures; therefore, it became the practice to license the construction of gates across highways. This concept changed when inter-continental travel became prevalent. In the twentieth century there has been a revolution in transportation caused by the automobile. The number and speed of automobiles engaged in interstate travel have caused another change in concept. Controlled access highways have become a public convenience and necessity.
Any common-law rules or case-made laws relating to highway rights were adaptable to circumstances and left capacity for growth. A present statement of public and private highway rights must reflect prevailing conditions.
Without entering into an extended discussion as to what does or does not constitute undue interference with access rights on a conventional or land-service highway we are forced to conclude that the doctrine granting a right of access to abutting landowners as developed for conventional or land-service highways does not have the same application to controlled access highways.
The courts have been in disagreement as to what constitutes undue limitations or unreasonable interference with the rights of an abutting owner. They are in even a more hopeless conflict when it comes to applying the doctrine to controlled access highways. The courts of the various jurisdictions, including our own, are not only in conflict but the judges constituting the various courts are in disagreement. It is difficult to find an opinion on the matter which is not accompanied by concurring and dissenting opinions.
It would serve no useful purpose to attempt to classify the numerous cases in an effort to follow the general rule. There is no general rule. There are well written opinions supporting and denying numerous degrees of access restrictions under the same facts and circumstances.
We believe that it will be most helpful if we state clearly the rules which are to be made applicable in this state under the circumstances without any confusion by reference to rules established by existing foreign decisions.
The appellants vigorously contend that the controlled access facilities statute (K. S. A. 68-1901, et seq.) is a mandatory provision requiring condemnation and payment of damages when access rights are restricted. We do not agree with this construction. The statute in no way attempted to restrict the state’s existing right to control access under the police power. The act was no doubt intended to give the State Highway Commission authority by condemnation to take the right of access in its entirety. This could not be done under the police power. An owner of land abutting a highway could not be placed in a cul-de-sac under the case made law. This was the right that was extended by the controlled access facilities statute. Perhaps the chief design of the statute was to permit the State Highway Commission to meet the standards of the federal laws. It was more in the form of an enabling statute to meet the requirements of the federal Interstate and Defense High way System. (23 U. S. C. A. § 101, et seq.) The standard adopted for the Interstate and Defense Highway System required that states be able to acquire access rights abutting thereon.
It has been decided that there is no right of access where a new controlled access highway has been established where none previously existed. In Moore v. State Highway Commission, 191 Kan. 624, 627, 383 P. 2d 549, it is stated:
“. . . We stated in the Riddle case [184 Kan. 603, 339 P. 2d 301] at page 610 that where a new controlled access highway is established by the commission through property where no highway previously existed, there is no taking of a right of access since such right of access never in fact existed. See Schnider v. State of California, 38 C 2d 439, 241 P. 2d 1, 43 A. L. R. 2d 1068; State ex rel. State Highway Comm. v. Clevenger, 365 Mo. 970, 291 S. W. 2d 57; State Highway Com. v. Burk et al., 200 Or. 211, 265 P. 2d 783; Carazalla v. State, 269 Wis. 593, 608a, 70 N. W. 2d 208; State v. Calkins, 50 Wn. 2d 716, 719, 314 P. 2d 449. See, also, articles entitled: The Limited Access Highway, 27 Wash. L. Rev. Ill; 13 Mo. L. Rev. 29; Freeways, 3 Stanford L. Rev. 298; Institute on Eminent Domain, Southwestern Legal Foundation, Dallas, Texas (1962) p. 46.”
We adhere to the rule that the owners of abutting lands have a right of access to the public road system but it does not follow that they have a right of direct ingress and egress to and from a controlled access thoroughfare. The right of access, if it can be determined to be a right under such circumstances, is the right to reasonable, but not unlimited, access to and from the abutting lands.
Although an abutting landowner has a right to use a highway he cannot be heard to say that he has been deprived of his right or compensably damaged because he does not have direct access to a certain highway where public judgment dictates that access to and from the highway should be controlled and is subject to control under the police power of the state.
The appellants complain that they do not have direct access from their property to the highway. The property abuts on a frontage or service road. Appellants have access to the frontage road at all points at which it abuts their property. There is no suggestion that the frontage or service road is not of proper quality. It is part of the state highway system. Appellants are granted access to the main highway at the east and west ends of their property. Appellee has constructed cross-over openings for their special use and benefit. Such cross-over openings are only 575 feet apart.
Circuity of travel, necessarily and newly created, to and from real property, does not of itself result in legal impairment of the right of ingress and egress to and from such property and a controlled access highway.
The common complaint is made here that following reconstruction, the bulk of traffic traveled on the main highway with no direct access to claimants’ property from the thoroughfare. As for diversion of traffic, an abutting owner has no right to the continuation of a flow of traffic in front of his property. The state’s exercise of its police power in such situations is predominant and controlling. The owner of abutting land has no property right in the traveling public using the highway. The state may abandon or reroute an existing highway without any liability to the owners of abutting lands.
The increasing number of accidents and vehicles on our highways cogently indicates the necessity of having a highway system which affords safety and permits the free flow of traffic. Such a system requires traffic control devices such as limited access highways, one-way streets, express thoroughfares, medial dividers, barrier curbs and the like. These and other traffic control devices may, on occasion, place a restriction on an abutting property owner’s free and convenient access to his property, but as long as the restriction is reasonable the courts will not interfere.
We are forced to conclude that appellants were not denied access to the highway system since the frontage road itself is a part of the highway system to which appellants admittedly have access at all points at which it abuts their property. The frontage road in turn provides them access to the through-traffic lanes by points of connection between the frontage road and the through-traffic lanes of U. S. Highway 24. Access is not denied but traffic is regulated within the scope of the police power of the state acting through the State Highway Commission.
As previously stated it would serve no useful purpose to review the numerous conflicting decisions dealing with the foregoing conclusions. We would be doing nothing more than competing with established research books. The cases may be found by reference to the later volumes of West’s Digest System, Highways, Key No. 85, and 43 A. L. R. 2d 1072, with particular attention to the Annual Supplemental Service. We would also recommend consideration of the following cases as presenting well reasoned opinions which have influenced us in reaching the conclusions herein: Tift County v. Smith., 219 Ga. 68, 131 S. E. 2d 527; Dept. Public Works & Bldgs. v. Farina, 29 Ill. 2d 474, 194 N. E. 2d 209, 213; Ryan v. Rosenstone, 20 Ill. 2d 79, 169 N. E. 2d 360, 362; Commonwealth v. Carlisle, Ky., 363 S. W. 2d 104, 107; Nichols v. Commonwealth., 331 Mass. 581, 121 N. E. 2d 56; Burnquist v. Cook, 220 Minn. 48, 19 N. W. 2d 394; Painter v. State, Department of Roads, 177 Neb. 905, 131 N. W. 2d 587, 591; State v. Danfelser, 72 N. M., 361, 384 P. 2d 241; Northern Lights Shopping Center, Inc. v. State, 247 N. Y. S. 2d 333, 338; State Highway Com’n v. Raleigh Farmers Market, Inc., 263 N. C. 622, 139 S. E. 2d 904, 906; State, ex rel. v. Linzell, 163 Ohio St. 97, 126 N. E. 2d 53; Kohler v. Brindley, Exr., 116 Ohio App. 241, 187 N. E. 2d 393; State ex rel. Ashworth v. Road Comm., 147 W. Va. 430, 128 S. E. 2d 471, 475, and Stefan Auto Body v. State Highway Comm., 21 Wis. (2d) 363, 124 N. W. 2d 319.
Appellants cite Franks v. State Highway Commission, 182 Kan. 131, 319 P. 2d 535 and Atkinson v. State Highway Commission, 184 Kan. 658, 339 P. 2d 334, as determinative of the controversy. The two decisions do appear to support appellants’ contention. However, they did not recognize the new concept of controlled access highways; they are contrary to the law as expressed in this opinion, and are therefore overruled.
The appellants also rely on Smith v. State Highway Commission, 185 Kan. 445, 346 P. 2d 259. The case does not support appellants’ contention. Although the Smith case discussed generally the law as it relates to highway access rights, the case was decided on other grounds as stated at page 461 of the opinion:
“The State Highway Commission filed a petition in eminent domain seeking to acquire rights of access thereby. Upon the docketing of the action this petition became the jurisdictional instrument upon which the trial was conducted. (See, Sutton v. Frazier, supra, and cases cited therein.) It is apparent from the petition the Commission elected to acquire by eminent domain the abutting landowners) rights of access. Upon the date of the taking the Commission had absolute power to control the access of the appellees and their successors in title to the 1410 feet of access acquired with the exception of the 40-foot Fort Markley entrance reserved to the appellees.”
In the above case the State Highway Commission elected to proceed by condemnation rather than under the police power. Eminent domain proceedings are based on the taking of a property right. A condemnation proceeding is an admission by the condemner that private property is being taken for public use. This was the point on which the Smith case was determined.
Although we cannot place our approval on the procedure which was followed in the instant case, the final judgment denying relief to the plaintiffs was proper.
The judgment is affirmed.
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The opinion o£ the court was delivered by
Parker, C. J.:
This was an action to quiet title to a strip o£ land condemned by the City of Wichita, Kansas, for the widening of Kellogg Street but claimed not to have been used for such purpose. The facts which were stipulated will be summarized.
In June, 1950, the City of Wichita condemned various tracts of land including Lots 170 and 172 facing Ida Avenue, belonging to Roger W. Estep and his wife, for the purpose of opening and widening Kellogg Street. The City of Wichita paid the Esteps the full value of the fee. No claim has been made that the price paid was not adequate, neither was the propriety nor the validity of the condemnation proceedings in anyway challenged.
A portion of the two lots was used for widening Kellogg Street, constructing sidewalks and placing poles for street illumination. The City has not occupied the north portion of Lot 170 consisting of a strip 15.2 feet wide facing Ida Avenue and widening to 29.85 feet on the alley to the east but has kept it mowed.
The stipulation further states:
“That other properties along the North side of said Kellogg Street, and, more particularly across the alley to the East of the subject property, were taken in the same condemnation proceeding; that in taking such other properties the City took only parts of the lots involved and did not take the lots in their entirety; that on said other described lots commercial buddings are now located, the same being constructed immediately adjacent to the sidewalk;, that the City did not take nor is there now in use on such other lots any parking or other rightofway other than the actual street and the sidewalk immediately adjacent thereto.”
“That the aforesaid Lots 170 and 172 on Ida, Hunter’s Second Addition to the City of Wichita, Sedgwick County, Kansas, were, at the time of the taking by condemnation, occupied as a retail gasoline service station and as such retad gasoline service station the premises were not susceptible of being divided.”
In June, 1961, the plaintiff, for a consideration, acquired all of the interest of the Esteps in Lots 170 and 172 by quitclaim deed. Thereafter, on a date not disclosed by the record, plaintiff brought an action to quiet title to the unoccupied strip of land.
The court considered the case on the written stipulation of the parties and rendered judgment for the defendant City.
The plaintiff has appealed.
It is conceded by the appellee, as contended by appellant, that the condemner took only an easement and did not acquire a fee title to the land condemned.
Appellant further contends:
“The second point to be considered here is whether or not the appellee may hold possession of the property in question when it is not and has not been used by the appellee for the purpose for which it was condemned.
“The third point raised by the appellant is that the appellee obtained no right, title or interest which is paramount to the right of the appellant as a result of the condemnation proceedings to the land in question. As set out in the Stipulation of Facts, the appellee has not used this portion of the property condemned for a street.”
Surveyed in their entirety appellant’s contentions amount to nothing more than the simple assertion that the condemner has lost its easement to the involved portion of the land condemned because it is not presently used for specific street purposes.
It would appear that appellant’s contentions are disposed of by the stipulated fact that at the time of the taking by the condemnation proceeding the premises were not susceptible of being divided. It was necessary for the city to condemn and pay the fee value for the entire tract in order to get the necessary portion. However, under the stipulated facts the contentions of appellant may be readily disposed of by the established law of this state relating to abandonment of condemned easements.
Mere nonuse, for a limited time, of the land condemned for public purposes, unless accompanied by failure to pay compensation, does not constitute abandonment. An easement on land dedicated to or condemned for a public use does not revert to the fee owner unless its use for the dedicated or condemned purpose has become impossible, or so highly improbable as to be practically impossible. (See McAlphine v. Railway Co., 68 Kan. 207, 75 Pac. 73.)
There is nothing in the record to indicate that the use of the land for some street purpose is impossible or even highly improbable.
In Christman v. City of Wichita, Kan., 209 F. 2d 639, the United States Court of Appeals, Tenth Circuit, in considering the Kansas rule, stated:
“Under the law of Kansas, neither misuse nor nonuse will bring about the reverter of property dedicated to a public use. In Gadarl v. City of Humboldt, 87 Kan. 41, 123 P. 764, the court held that when title has become vested in a municipal corporation for the public benefit, it cannot be impaired by any inaction or delay on the part of public officials in devoting the property to the uses for which it has been dedicated.” (p. 641.)
The same question was also considered in Harvey v. Railroad Co.. 111 Kan. 371, 207 Pac. 761, where the following statement appears:
“It was not necessary for the condemnation commissioners in 1879 to limit the amount of land to be condemned for railway purposes to the actual acreage required at that time. In the exercise of their discretion they could look to the future and to the gradually expanding need for switch yards, sidings, workshops and the like, and condemn such amount as seemed reasonable to them. Nor was this any hardship on the owner. He was paid for the land taken; and yet he and his successors in title down to and including the plaintiff have none the less enjoyed the possession, emblements and profits of most of the condemned property for all these years. Of course, so long as the railway company did not need all the property condemned, the successive fee-title holders were strictly within their rights in occupying and using it. . . .” (p. 373.)
What was said in Gadarl v. City of Humboldt, 87 Kan. 41, 123 Pac. 764, is applicable here.
“The doctrine of abandonment is the last refuge of those who, like the plaintiff, suffer from unfortunate mistakes regarding the extent of their property rights. It is also the last refuge of the rapacious and the greedy, who are watchful for opportunities to gain private advantage at the public expense. In its application the doctrine always involves nonuse, misuse, or adverse use. It has been asserted in one form or another, and has been repudiated, in respect to city streets, (citing cases.)” (p. 43.)
For other applicable decisions see McAlpine v. Railway Co., supra; Burlingame v. Thompson, 74 Kan. 393, 394, 86 Pac. 449; DePriest v. City of Salina, 101 Kan. 810, 812, 168 Pac. 872, and Swope v. Kansas City, 132 F. 2d 788.
We also find the rule stated in 30 C. J. S., Eminent Domain, § 458,. pp. 660, 661, as follows:
“In the absence of statutory provision, the general rule is that mere nonuser of the property condemned is not sufficient to constitute an abandonment, if for a period less than the statutory period of limitations, unless accompanied by a failure to pay the compensation, or there must be both a nonuser and an intention to abandon. So, a condemnor’s failure to occupy its entire easement does not constitute an abandonment of the unused portion. Nonuser, if long continued, is evidence of intent to abandon, and may give rise to a presumption, of abandonment. . . .”
See, also, 18 Am. Jur., Eminent Domain, § 124, p. 744.
Appellant places great weight on Kingman County Comm’rs v. Hufford, 126 Kan. 106, 266 Pac. 932. What is there said and held is not applicable to the facts in this case. The defendant in that case continued to farm condemned land which had not been used by the county and the county attempted to collect rent. It was held:
“Rule followed that the condemnation of private property for public use does not transfer the title and ownership of the property, and after such condemnation the owner and his tenant may continue to use the property as they see fit, without attorning to any public board or functionary therefor, so long as they do not interfere with the dominant rights in the property vested in the public by the condemnation proceedings.” (Syl. ¶ 1.)
The evidence in the case at bar does not establish that the use of the land for which it was condemned has become impossible or highly improbable. Many possible proper future uses can be imagined.
Based on what has been heretofore stated and held we are forced to conclude that the stipulated facts do not establish an abandonment of any part of the easement in controversy because of nonuse.
The judgment is affirmed. | [
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Pierron, J.:
Janet Pralle appeals the district court’s admission of tire will of Betty Jo Strader, her late mother, to probate. Janet argues the will, found more than 4 years after Betty’s death, is time-barred and the savings provision does not apply. We affirm the district court’s decision based on the unusual facts of this case.
On October 19, 2006, Betty died in Blue Rapids, Marshall County, Kansas. She was predeceased by her husband, Gerald Strader, and survived by five adult children: Roger Strader, Alan Strader, Janet Pralle, Eric Strader, and Regina Crowell.
In December 2006, Eric filed a petition for letters of administration through his attorney, Darrell Spain. He claimed that Betty died intestate with approximately $300,000 in real estate, $20,000 in annual income, and $200,000 in personal property, and requested that Jerry Weis be appointed administrator of the estate. Janet filed an objection to the appointment of both Weis as administrator and Spain as the estate’s attorney, alleging a conflict of interest.
On February 2, 2007, tire district court found that Betty had died intestate on October 19, 2006, and appointed Weis administrator of her estate. Weis later valued Betty’s estate at $904,415.56 — $589,000 in real estate, $1,000 in household furnishings, $10 in securities, $65,985.56 in mortgages, notes, and cash, $85,200 in other personal property, and $163,220 in an oil drilling company. Throughout 2007, Weis facilitated the sale of livestock, grain, scrap metal, heavy equipment, and a lease of pastureland. Janet’s appeal of a proposed sale of real and personal property and payment of Eric’s $10,000 oil drilling company bonus resulted in protracted litigation. See In re Estate of Strader, No. 101,195, 2010 WL 1882146 (Kan. App. 2010) (unpublished opinion) (remanded for decision on merits of appeal).
In November 2010, Weis was discharged as administrator due to health concerns and replaced by William O’Keefe. In December 2010, the district court approved a public auction of the real and personal property and, notwithstanding Janet’s objection, permitted a partial distribution of $20,000 to each heir. Betty’s estate was worth $1,348,146.62 at final valuation, including $898,900 in real estate and $160,527.63 in personal property.
On February 22, 2011, Jason Brinegar, of Galloway Wiegers & Brinegar, P.A. (law firm), notified the court that Betty’s will had been found at his Maiysville law office “[djuring a recent review of old files and general housekeeping.” That same day, Eric filed a petition for probate of the will under K.S.A. 59-618 and petitioned for a stay of the property auctions. Roger and Regina filed a brief in support of Eric’s petitions for probate and stay, whereas Janet filed a petition to deny admission of the will to probate under K.S.A. 59-617.
At the evidentiary hearing on March 21, 2011, the district court took judicial notice of the original wills of both Betty and Gerald. Gerald’s will had been admitted to probate years earlier. Cynthia Mason testified she had worked at the law firm as a secretary from 1978 to 2000. Witnessing wills was part of her job description. Mason testified that because the wills bore her signature and proper procedure was always followed, she must have witnessed Betty and Gerald sign their respective wills on August 28, 1985. The law firm relocated in 1984. In the old building, original wills were kept in a big safe. In the new building, they were kept in a large box with drawers like “little safe deposit boxes,” which had labels on the front and could hold up to 10 wills. Mason checked tire boxes two or three times during her employment to ensure that they were correctly marked.
Keith Sprouse testified he had drafted and witnessed Betty’s will. Before becoming a district court judge, Sprouse was a partner at the law firm. He drafted between 50 and 75 wills as a private practitioner. His procedure for drafting a will was to (1) meet with the client to determine his or her wishes regarding property distribution, (2) prepare the document in the proper format, and (3) ensure the document was correctly witnessed. Sprouse drafted and witnessed the wills of both Betty and Gerald. The law firm kept original wills first in a vault, then in a large box containing locked “bank box-like things.” Betty’s will was kept in that box.
Eric testified he had searched for his mother’s will after her death. Gerald had told Eric about the execution of the wills at the law firm, as well as the contents of the wills. Eric never had possession of his mother’s will. After Betty died, Eric looked through her house but did not find her original will. Regina called the law firm and scheduled a meeting, which was attended by Eric, Regina, and Roger. In the week following Betty’s death, tbe siblings requested her original will but Brinegar only produced an unexecuted copy. In the second week following Betty’s death, Eric looked through her house again, found her safe deposit box key, and went to the bank with Roger, Weis, Spain, and Brinegar. How ever, the safe deposit box did not contain Betty’s original will. After being notified by O’Keefe on February 16, 2011, that the law firm had found Betty’s original will, Eric filed a petition for probate.
Julie Champoux testified she had worked at the law firm for 3 years as an accountant. She and Brinegar were looking through the safe deposit boxes in the law firm for another client’s will when Brinegar found Betty’s will. Campoux testified he was surprised to find the will.
Janet testitfied that she believed her mother did not have testamentary capacity. Her testimony is not relevant to this appeal.
Spain testified he was the attorney for Betty’s estate. After he met with Betty’s children at the law firm, Brinegar sent him two unexecuted copies or drafts of Betty’s will because “that was the best they could come up with.” Janet had one of these copies (the 1996 draft) admitted into evidence to support her argument that Betty did not intend for her 1985 will to control. Upon finding Betty’s original will, Brinegar contacted O’Keefe, the administrator of Betty’s estate.
Regina Crowell testified that she believed Betty’s will was consistent with her intentions regarding property distribution.
After hearing all the evidence, the district court admitted Betty’s will to probate. The court found that In re Estate of Tracy, 36 Kan. App. 2d 401, 140 P.3d 1045 (2006), controlled and In re Estate of Seth, 40 Kan. App. 2d 824, 196 P.3d 402 (2008), was in accord. The court also made an express finding that no one knowingly withheld Betty’s will from probate.
Janet argues the district court erred in admitting Betty’s will to probate under K.S.A. 59-618. Specifically, she argues that a will offered for probate more than 6 months after the testator’s death can only be admitted if knowingly withheld from probate. Eric, Roger, and Regina contend drat any innocent beneficiary can use K.S.A 59-618’s savings provision. O’Keefe, the administrator of Betty’s estate, agrees with Eric, Roger, and Regina.
Interpretation of a statute is a question of law over which this court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. Redd v. Kansas Truck Center, 291 Kan. 176, 195, 239 P.3d 66 (2010).
If a district court reaches the right result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005).
K.S.A. 59-617 states: “No will of a testator who died while a resident of this state shall be effectual to pass property unless a petition is filed for the probate of such will within six months after the death of the testator, except as hereinafter provided.”
An exception to the 6-month limitation is found in K.S.A. 59-618:
“Any person who has possession of the will of a testator dying a resident of this state, or has knowledge of such will and access to it for the purpose of probate, and knowingly widiholds it from the district court having jurisdiction to probate it for more than six months after the death of the testator shall be liable for reasonable attorney fees, costs and all damages sustained by beneficiaries under the will who do not have possession of the will and are without knowledge of it and access to it. Such will may be admitted to probate as to any innocent beneficiary on petition for probate by any such beneficiary, if such petition is filed within 90 days after such beneficiary has knowledge of such will and access to it, except that the title of any purchaser in good faith, without knowledge of such will, to any property derived from the fiduciary, heirs, devisees or legatees of the decedent, shall not be defeated by the production of the will of such decedent and the petition for probate of the will after the expiration of six months from the death of the decedent.” (Emphasis added.)
K.S.A. 59-617 — the limiting statute — was enacted in 1939 as part of the Kansas Probate Code, whereas its exception — the savings provision — was contained in a 1943 amendment. Originally, a probate petition had to be filed within 1 year after the death of the testator. L. 1939, ch. 180, sec. 53. The filing window was subsequently reduced to 6 months. L. 1985, ch. 191, sec. 8 (K.S.A. 59- 617). A knowing withholder of a will was barred from taking under the wall in addition to being held hable for the damages suffered by beneficiaries. L. 1939, ch. 180, sec. 54. That bar was subsequently removed. L. 1985, ch. 191, sec. 9 (K.S.A. 59-618).
The Kansas Legislature added the following clauses to K.S.A. 59-618 in 1943:
“[T]he said will may be admitted to probate as to any innocent beneficiary on the application by him for such probate, if such application is made within ninety days after he has knowledge of such will and access thereto and within five years after the death of die testator: Provided, The tide of any purchaser in good faith, without knowledge of such will, to any property derived from the fiduciary, heirs, devisees, or legatees of the decedent, shall not be defeated by the production of the will of such decedent and the application for probate thereof after the expiration of one year from the death of the decedent.” L. 1943, ch. 213, sec. 2.
Subsequent amendments changed “one year” to “nine (9) months,” “application” to “petition,” L. 1972, ch. 215, sec 2, “the said will” to “Said will,” L. 1976, ch. 242, sec. 6, “Said Will” to “Such will,” “nine (9) months” to “six months,” and struck the “within five years” requirement. L. 1985, ch. 191, sec. 9.
It is noteworthy that a will withholder was once barred from taking under the will because it acknowledges the possibility that the withholder was a beneficiary, rather than a disinterested party. Moreover, the leading treatise on the subject describes a K.S.A. 59-618 withholder of a will as a “delinquent beneficiary” and innocent beneficiaries as those who were not “personally derelict in respect to [the probate] delay” or have not “joined in tire suppression of the will.” 2 Bartlett, Kansas Probate Law and Practice § 538, p. 40-41 (rev. ed. 1953). Therefore, K.S.A. 59-618 appears to have been enacted to both punish a beneficiary who withholds a will (no taking under the wifi and liable for damages), and protect innocent beneficiaries (compensated for the inability to probate the will).
Eric’s argument that the savings provision was enacted to undo the result of In re Estate of Colyer, 157 Kan. 347, 139 P.2d 411 (1943), is fundamentally flawed because that decision was rendered on July 10, 1943, after K.S.A. 59-618 was amended and became effective. One thing is certain, K.S.A. 59-618 was amended to pro vide more protection to innocent beneficiaries (who still must be compensated by withholder of will but now are able to probate the will within 90 days of knowledge of and access to will).
In Tracy, 36 Kan. App. 2d 401, this court interpreted K.S.A. 59-618 to allow the probate of a lost will. Tracy died on August 21, 2003. Her sister and niece initiated intestacy proceedings, in which the district court found that Tracy had died intestate and appointed the petitioners to be coadministrators. On March 9,2004, the coadministrators filed an amended petition to probate Tracy’s will, claiming the will had been discovered on February 24, 2004; no notice was sent to the will’s executor or beneficiary. On February 23, 2005, the executor filed a similar petition, claiming the will had been “ 'withheld from probate by tire actions of the deceased scrivener, who stored the will in an envelope with old, canceled checks and bank statements.’ ” 36 Kan. App. 2d at 403. It was undisputed that the executor had access to the will for less than 90 days before filing her petition. The guardian ad litem for the unknown heirs filed an answer opposing probate.
In Tracy, the district court held that K.S.A. 59-618 was inapplicable and denied the probate petitions, reasoning that “the wrongdoing of someone who has possession and knowingly withholds a will from probate was a condition which permitted an innocent beneficiary to submit a will to probate beyond the 6-month time limit.” 36 Kan. App. 2d at 407. Janet urges us to adopt this interpretation, something the Tracy court refused to do.
To ascertain the legislative intent behind K.S.A. 59-618, the Tracy court utilized the in pan materia canon of statutory construction. The court found that In re Estate of Harper, 202 Kan. 150, 158, 446 P.2d 738 (1968), stood for tire following propositions: (1) The intent underlying the Kansas Probate Code is to probate legally executed wills; (2) the probate statutes express the legislative intent that every person’s will be offered for probate; and (3) it is a clear public policy to favor the probate of a will over its suppression. Tracy, 36 Kan. App. 2d at 408. The court also found that the amendments to K.S.A. 59-618 reflected the intent to (1) submit every legally executed will to probate, (2) penalize people who wrongfully withhold wills, and (3) except innocent beneficiaries from the 6-month time limit. 36 Kan. App. 2d at 408 (citing L. 1943, ch. 213, sec. 2). The Tracy court ultimately held: “The district court’s interpretation of K.S.A. 59-618 is contrary to the underlying intent of the probate code, particularly under the facts [presented].” 36 Kan. App. 2d at 408 (admitting will to probate in the absence of a knowing withholding).
The Tracy holding is slightly less damaging to Janet’s argument than the rationale because this case is factually distinguishable. As in Tracy, Betty’s will was left with its scrivener and was not discovered within 6 months of her death. Tracy’s will was found 6 months and 3 days after death, whereas Betty’s will was found about 4 years and 4 months after her death. As in Tracy, intestacy proceedings were commenced by Betty’s heirs: but Tracy’s estate had been fully administered before both the heirs and executor filed their probate petitions amidst opposition from the guardian ad litem (on behalf of unknown heirs), whereas Betty’s estate was still being administered when Eric (supported by two other heirs) filed a probate petition amidst opposition from Janet (another heir). Nevertheless, the timeline of this case is not a valid reason for refusing to apply Tracy’s rationale because, as the appellees point out, K.S.A. 59-618 protects bona fide purchasers. Once the 6-month probate window has closed, a bona fide purchaser of property from the decedent’s estate takes free of any possible devise contained in a subsequently probated will. Therefore, we rely on Tracy to affirm the district court’s admission of Betty’s will to probate.
In Seth, 40 Kan. App. 2d 824, this court interpreted K.S.A. 59-618 to allow the probate of a will withheld by a malpracticing lawyer. Seth died on December 4, 2005. In February 2006, Seth’s son and daughter found her will and took it to an attorney, whom they instructed to seek its admission to probate. But the attorney failed to probate the will within the prescribed 6-month period, and notified the son of his error in late June 2006. The son quickly retrieved the will, took it to another attorney, and filed a probate petition in late August 2006. He did not seek damages under K.S.A. 59-618 because the attorney had no assets or insurance and had lost his law license. Seth’s grandchildren filed an answer opposing probate.
The district court held that the son was an innocent beneficiary entitled to file a probate petition under K.S.A. 59-618’s savings provision. This court agreed. First, the Seth court defined “innocent beneficiary” as “a beneficiary without fault for the knowing withholding of a will from probate during the 6-month period following the death of the testator.” 40 Kan. App. 2d at 827-28. Second, it defined “such will” as “a will that has been knowingly withheld from probate” and found that Seth’s will “was indeed knowingly withheld from probate, thus triggering the potential allowance for a belated filing.” 40 Kan. App. 2d at 828. The court’s third finding is irrelevant to this case as it dealt with the issue of whether the son met the saving provision’s 90-day fifing requirement. Here, it is undisputed that Eric filed his probate petition within tire 90-day window. But the court’s analysis did produce this relevant dictum: “[I]f there has been no knowing withholding, there would be no need for the savings clause.” 40 Kan. App. 2d at 829 The Seth court found that its conclusion — K.S.A. 59-618 saved the son’s probate petition from being time-barred — was consistent with Kansas’ public policy of probating all legally executed wills and not suppressing or withholding wills from probate via “narrow and technical applications of the statutes governing probate.” Seth, 40 Kan. App. 2d at 829-30 (citing Harper, 202 Kan. at 158).
K.S.A. 59-618 could well be interpreted as is desired by Janet. However the statute specifically states: “Such will maybe admitted to probate as to any innocent beneficiary on petition for probate by any such beneficiary, if such petition is filed with 90 days after such beneficiary has knowledge of such will and access to it. . . .”
The language of this portion of the statute appears to pursue the goal of probating all valid wills if possible. We readily concede that the statute might also be interpreted to allow for the late fifing only if a withheld will is involved. The placing of this provision in a section which discusses withheld wills and tire use of “such will,” perhaps referring only to withheld wills, weighs into that conclusion.
But, we must also note that as far as any innocent beneficiary is concerned, the knowing withholding of a will, or the misplacing of the will, have the same result in that the beneficiary’s rights under the will are defeated. Allowing late filing for either reason is logical and does not absolutely depart from the language of the relevant statute.
We also note that Betty’s estate was still open when the will was found and that Tracy has been in effect for almost 6 years. Tracy was not appealed, and Seth dealt with a knowingly withheld will (although there is dicta that seems to favor Janet’s position) and did not mention Tracy. In addition, there has been no legislative action to cure Tracy if its finding was incorrect.
For these reasons, we affirm the district court’s decision.
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The opinion of the court was delivered by
B'prch, J.:
In a workmen’s compensation case the district court sustained the findings of the commissioner and denied recovery to the claimant on his petition for a review of an award because before the date of the hearing by the commissioner final payment had been made to the claimant of all sums allowed him in the original award. The claimant has appealed to this court and contends that he was confused and did not intend to accept final payment and that he was misled by the respondent.
The original award was made February 15, 1944, and provided for the payment in a lump sum of the amount due as of February 10, 1944, and that the respondent should pay an additional $900 at the rate of $18 each week for fifty weeks thereafter. The period during which payments should be made expired January 26, 1945. The petition for review was filed January 6, 1945. On January 8 the commissioner mailed a notice to respondent to the effect that the petition would be heard February 16. On January 14 the respondent mailed to claimant its check for the balance due under the award. Claimant cashed the check on January 19. On January 25 respondent filed a motion to dismiss the petition for review on the grounds that claimant had received all payments under the award, including the final payment, and that the commissioner, therefore, had no jurisdiction to hear the petition for review. The claimant filed an answer to the motion, setting forth therein various facts upon which he relied, which will be considered later herein, and tendered a return of the final payment. It will be noted that the petition for review was filed before final payment was made but that the hearing was set after the payment was made to and accepted by the claimant.
Nothing was said in the award relative to the manner in which the payments should be made except that they should be “paid at the rate of $18 per week for fifty weeks, thereafter.” The amount due to the claimant in a lump sum under the provisions of the award was paid by the issuance of a cheek for the amount of $671.14. The check was made payable to the claimant and his attorneys and was delivered to one of his attorneys on or about March 1, 1944, together with another check in the amount of $33.42. There was no data on the larger check indicating the time covered by it but the smaller check was dated February 25, 1944, and had a notation on its stub reading as follows: “2-27-44 to 3-10-44.” Claimant endorsed the checks over to his attorneys and received his proportion of the proceeds thereof. The notation on the stub of the small check is somewhat significant. Since the check was dated February 25 and delivered on or about March 1, it clearly appears that at the inception of the making of the periodical payments the respond ent began paying compensation partly in advance of the due date. Thus, in connection with the receipt of the smaller check claimant was paid on or about March 1 the compensation which was due him- from February 27 to March 10. Therefore, he was paid compensation approximately ten days in advance of its due date. A third check was dated March 10, .1944, and on the stub attached thereto was the notation “3-11-44 to 3-26-44.”
Subsequent to the issuance of the first three checks the respondent mailed to claimant a series of checks with stubs attached. Two checks were mailed each month. The dates on which the checks were issued during the period of approximately eleven months varied somewhat according to the time when the pay-roll records were made up but the stubs attached thereto, with one exception, carried notations showing that compensation was being paid to either the 10th or the 26th of the respective months involved. On or about December 27, 1944, respondent issued its check as of such date and mailed the same to the claimant on or about the 29th of December, 1944. Attached to said check was the customary stub and upon the same was the notation “12-27-44 to 1-10-45.” Claimant cashed this check on or about January 2, 1945. Thus, it will be seen that the claimant, if he had paid any attention whatever to the notations on the stubs, was advised thereby that compensation had been paid to the 10th of January, 1945. Since he cashed the check on or about January 2, 1945, it also follows that the claimant probably knew on January 6, 1945, at which time he filed his petition to review the award, that he had been paid compensation in advance of such date, to wit, until' January 10, 1945. Consequently, the only compensation which could become due to the claimant thereafter was that accruing during the period beginning January 11th and expiring January 26th. On January 14, 1945, respondent issued and mailed to claimant the last check in the amount of $38.62. The stub which was attached to said check was on the customary form but did not have any notation thereon in the usual place showing the period of compensation covered by the same. In explanation of its omission the treasurer of the respondent stated that he did not show the period covered by the last check because the amount thereof was adjusted in order to make the amount correrspond with the balance due on the total amount of the award and that he omitted to put the date on it to which compensation was paid. He also testified that it was customary for the company to mail out the pay-roll checks either on or after the 14th and the 26th days, of each month. Thus, it will be seen that there was nothing unusual about the mailing of the last check to the claimant on or about January 14th. The only irregularity in connection therewith was the failure to make the customary notation on the stub showing the compensation period covered thereby. The treasurer did not write any letter to the claimant in connection with the mailing of the last check and did not request any final receipt. There is no showing in the record whether he had any knowledge as to the company being entitled to the final receipt.
The applicable statute, G. S. 1935, 44-528, reads as follows:
“At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commission upon good cause shown upon the application of either party, . . .” (Emphasis supplied.)
A recent case, wherein this court directly construed the above statute, is that of Bailey v. Shelly Oil Co., 153 Kan. 378, 110 P. 2d 746. In the cited case the period during which payments should be made for partial temporary disability expired August 3, 1939. On August 1, 1939, a petition to review the award was filed. On July 31, the employer mailed its check to claimant for the final payment. He received it and cashed it on August 1. The petition for review of the award was heard by the commissioner on October 31 and on November 28 the commissioner denied the claimant further compensation. Claimant appealed to the district court and the court made an award for total disability beginning August 3, 1939, and expiring August 31 and for partial disability thereafter. On appeal to this court it was contended that the record in the cited case disclosed that the original award was not reviewed by the commissioner before final payment thereof. In such case this court held as follows:
“The point is well taken if the wording of the statute is to be followed. On behalf of appellee it is argued that if the petition for review and modification is filed with the commission before final payment the hearing may be had on the petition after final payment. No authority is cited in support of that view and our own research discloses none. . . . When final payment was accepted before the hearing on the petition the holding has been uniform that the commission was without authority to conduct the hearing and modify the previous award. (See Yehle v. Stamey-Tidd Const. Co., 150 Kan. 440, 94 P. 2d 328; Farr v. Mid-Continent Lead & Zinc Co., 151 Kan. 51, 98 P. 2d 437; Jennings v. Aylward Production Co., 151 Kan. 142, 98 P. 2d 454, and cases cited in those opinions.) The view that the hearing and modification,must be before final payment is made, conforms to the statute. Its language is clear on that point. The rights of the parties to have a review and modification of a previous award are governed by statute; the court has no authority to say such a review and modification may be had under circumstances in addition to those named in the statute.” (p. 380.)
Prior to the general revision of the compensation act in 1927 the words “but not after” were not contained in section 44-528. Even before such words were inserted this court held that the hearing for a modification Sf an award must occur before the making of final payment. With knowledge of such holding before it, all that the legislature did in connection with the general revision was to emphasize our construction of the statute by inserting the phrase “but not after.” Nothing was added which in any manner modified or created any exception to the plain and clear language of the statute. In such circumstances this court has no authority to read into the statute a meaning contrary to the amplified intent of the legislature and the rule of liberal interpretation of the compensation act will not permit us to exercise judicial ingenuity or to stretch the elasticity of language to the point of disregarding the simple unclouded provision of the statute. As was said in Yehle v. Stamey-Tidd Const. Co., 150 Kan. 440, 94 P. 2d 328—“If final payment has been made, a complete finality is thereby reached, and no further proceedings can be entertained by the compensation commission.” (p. 446.) Whenever a claimant accepts final payment of an award before the date set for hearing of a petition for review and modification he thereby divests the commission of any authority to review the award. The present case is an unquestionable example of an award as distinguished from an agreement, release of liability, or final receipt and as a consequence the provisions of G. S. 1935, 44-527, are not before us for consideration. Since it is our conclusion that the commissioner had no authority to consider the petition to review the award this opinion could be closed consistently at this point. However, counsel for claimant urge us to deliberate certain other elements which they contend are germane to jurisdiction and, consequently, we will examine such contentions.
Claimant’s answer to respondent’s motion to dismiss for want of jurisdiction set forth in substance that the claimant had been advised that his physical and mental condition had shown no improvement; that he still remained disabled from work; that he was examined by certain doctors who said that he was suffering from a traumatic neurosis; that he was advised by his attorneys that he should under no circumstances accept the last payment under the existing award and that claimant fully understood that he was not to accept such final payment; that claimant had no education beyond the eighth grade; that his mind was upset; that he had never kept any written record of the payments; that claimant had never received any payments in advance under said award ; that attorneys for the claimant had written attorneys for the respondent to the effect that they would be' present on the date set for hearing; that the last check contained no mark indicating that it constituted the last payment and that claimant cashed said check under the belief that there was still further compensation yet to be paid under the award; that he was misled by the data contained on the stub and the fact that the check did not indicate that it was a final payment; that respondent did not intend that said last check should constitute final payment; that the same was accepted by claimant under mutual mistake of fact; and in the alternative that if the respondent intended said check to constitute final payment it was sent in bad faith with the intent to deceive the claimant and that therefore it should not be binding upon him.
Claimant’s counsel assert that the evidence introduced in support of the foregoing answer establishes that there was no intention on the part of the respondent to tender final payment of compensation. The evidence of respondent’s treasurer herein referred to negatives such a contention. At this point it may be prudent to note that the findings of the commissioner on any questions of fact based upon contradictory evidence are binding upon this court because the district court confirmed the findings of the commissioner. The journal entry to such effect reads as follows:
“. . . . the court enters its judgment herein, affirming and approving the award of the Commissioner made upon the hearing on Claimant’s Petition for Review, said judgment as contained in the written opinion of the court being in words and figures, as follows:
“ ‘I have carefully considered all evidence presented to me in the above entitled case, including exhibits and transcripts furnished by the Workmen’s Compensation Commissioner, and am convinced that the holding of the examiner is correct.’ ”
Following such statement the journal entry reviews certain evidence and concludes that the petition for review was properly dismissed for the reason that the commission was without jurisdiction to grant further relief to the claimant. It must be conceded, however, that the district court did review the evidence and sustained the findings of the commissioner. Regardless of such fact, however, claimant contends that the undisputed evidence shows that the manner in which respondent paid compensation to claimant was confusing and apparently calculated to mislead the claimant. We do not find in the record any evidence indicating a deliberate intent on the part of the respondent to mislead the claimant. The notation on the stub of the next to the last check which was sent to claimant clearly indicated that he was being paid compensation to January 10, 1945. The next and final check, in the amount of $38.62, obviously covered a two-weelc period beginning January 11th and expiring approximately two weeks later because claimant was being paid at the rate of $18 each week, and consequently could not have assumed that he was being paid compensation only to the date of the check, to wit: January 10, 1945. The notation on the previous check had been sufficient to advise him that he was paid compensation to and including such date. As hereinbefore stated, the stub on the last check was on the customary form and the word “compensation” was written thereon. Therefore, it is clear that the claimant could not have been misled into thinking that the respondent was making any gratuitous and voluntary contribution to him. The commissioner did not find that the claimant was misled by the circumstances and neither did the district court. No request was made by counsel for claimant that the commissioner or the district court make a special finding covering the point. In such circumstances this court could not supply such a finding of fact for the claimant and particularly is such true because the documentary evidence indicates that the claimant was not misled notwithstanding the fact that claimant testified to such a con- • elusion.
Counsel for claimant further contend, however, that the evidence is also undisputed that the claimant did not intend to accept final compensation; Obviously the provision of the statute would be entirely without substance and effect if a claimant could circumvent and avoid it by merely taking the stand and testifying that he did not intend to accept payment. The record is quite clear that counsel for claimant did not intend for him to accept payment because they had carefully cautioned the claimant against so doing and had written a letter to counsel for the respondent which clearly indicated that his counsel intended that the claimant would not accept the final payment. Regardless of such admonition, however, the claimant did accept it. Such foregoing facts are used as a basis for the argument that claimant did not have sufficient mental capacity at the time to realize that he was accepting the final payment and such argument is further fortified by testimony of a psychiatrist to the effect that the claimant probably did not realize he was accepting the final payment. Such contentions are equivalent to asserting that the claimant at the time he accepted final compensation was mentally incompetent. G. S. 1943 Supp., 44-509, contemplates that a guardian should be appointed for a mentally incompetent person who has a claim under the compensation act. No effort was made to have a guardian appointed for the claimant. As herein set forth, claimant cashed the check on January 19. On the following February 16 he appeared and testified in his own behalf. Even if it should be contended that the claimant was mentally incompetent on the 19th of January and had regained his mental competency on February 16, the question of mental competency, nevertheless, would have been a question of fact and the jurisdiction of this court is limited to questions of law under G. S. 1935, 44-556. The evidence as to the claimant’s mental competency in the present case was somewhat conflicting and neither the district court nor the commissioner found that claimant was mentally incompetent at any time. Incidentally it is quite evident that the legislature never intended that the provisions of the compensation act providing the time in which claims could be made or other remedies invoked under the compensation act could be nullified by merely showing that the claimant at the crucial moment had a lapse of memory or suffered from temporary mental confusion. There is no conclusive showing or finding in the present case which would release the claimant from responsibility for his act on the ground of mental incapacity. (See Williams v. Cities Service Gas Co., 151 Kan. 497, at p. 503, 99 P. 2d 822, and cases there cited.) It may be observed again that G. S. 1935, 44-528, does not contain any exception exempting claimant from its operation in such circumstances.
Claimant’s counsel assert that since the commissioner had jurisdiction of the subject matter of the controversy and of the parties before the time of the making of the final payment, the commissioner retained jurisdiction for the purpose of considering the foregoing circumstances under which the final payment was made. Even if such an assertion be sound, the record in the present case would not justify a reversal of the trial court on the ground that claimant was mentally incompetent. . Perhaps the triers of fact thought he was competent. There is evidence in the record which would support a finding to such effect.
Counsel for claimant also contend vigorously that the respondent, as a matter of law, did not have a right to tender final payment in advance of the due date and thereby shorten the period in which the petition to review the award could be heard. The argument is advanced that if such be permissible, it is equivalent to the allowance of a payment in a lump sum without the approval of the compensation commissioner in violation of G. S. 1935, 44-525, and contrary to G. S. 1935, 44-512, which provides that the payments shall be made at the same time, place, and in the same manner as wages of the workman were payable at the time of the accident subject to modification by the commissioner. In support of such contention claimant’s counsel cite City of Hapeville v. Preston, 67 Ga. App. 350, 20 S. E. 2d 202; Lumbermen’s Mutual Casualty Co. v. McIntyre, 67 Ga. App. 666, 21 S. E. 2d 446; and Creighton v. Continental Co., 155 Pa. Super. 165, 38 A. 2d 337. Examination of the cited cases discloses that they are authority for rules to the effect that the purpose of compensation acts is to provide for compensation in lieu of wages and that it is the intention of such acts that the compensation should be paid as wages in such manner that it will not be dissipated by improvident expenditure or loss thereof by the workman, that he thereby may become dependent upon charity for support during the period of disability and that consequently an employer has no right by voluntarily anticipating payments to an employee, to shorten the period of the employer’s liability. It is also contended that any payments made in advance are merely voluntary overpayments and that the employer is only entitled to credit for payments to an injured workman to the extent that such payments were due at the time of the making thereof (citing McGhee v. Sinclair Refining Co., 146 Kan. 653, 73 P. 2d 39, and Rupp v. Jacobs, 149 Kan. 712, 88 P. 2d 1102).
In the present case the commissioner found that at a conference between claimant’s attorneys and respondent’s attorneys it was agreed that the “payments, instead of being made weekly would be made on the regular pay days of the company, semimonthly on the 10th and 26th.” Claimant’s counsel contend there is no evidence in the record to justify such a finding. We fail to find any direct testi mony on such an agreement but the claimant testified that it was customary for him to be paid wages twice each month. He denied, however, that he was ever paid wages in advance while he was working for the respondent. If the claimant’s testimony was the only evidence in the record to support the making of an agreement between counsel for the respective parties relative to permitting payments to be made partly in advance and such advance payment had been made only in connection with the last payment, this court might be inclined to follow the authorities' cited by counsel for claimant and hold that an employer could not shorten the period of liability by voluntarily advancing payment to the claimant but the record in the present case clearly discloses that practically all payments of compensation made to the claimant every two weeks covered a period during which the compensation was partially due and partially paid in advance. During the entire period covered by the award the checks which were accepted and cashed by the claimant paid him compensation partially in advance. Such acquiescence and ratification by the claimant of the manner of payment is rather convincing evidence that the parties in effect agreed to a slight modification of the terms of the award insofar as it provided for the making of payments as contemplated by G. S. 1935, 44-528. For the purpose of clarity the language of the statute is noted again:
“At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commission . . (Emphasis supplied.)
This court cannot say as a matter of law in this case that there was no evidence to substantiate the slight modification of the award. The payment was made pursuant to such modification. This court does not disagree necessarily with the general principles followed in the cases cited by claimant’s counsel but they are not controlling in the present case because the facts do not justify their application.
The final contention on behalf of claimant is that the commissioner once having acquired jurisdiction to hear the petition for review and having fixed a date for hearing, retains jurisdiction and does not lose it by the subsequent tender and acceptance of the full amount payable under the original award. Such a contention is directly contrary to the construction which this court has given consistently to the statute and for the reasons herein set forth does not require further discussion. Diligent counsel for claimant also raise other points not discussed at length herein. Consideration has been given to the same and they clearly do riot establish any authority of the commissioner to modify the award after the final payment of compensation.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The question in this appeal is whether the trial court erred in denying the plaintiff’s motion for permission to file an amended petition. A petition filed previously in the same case was considered by this court on appeal from an order overruling a demurrer to the same and we reversed the district court. In so doing, we held in substance that such petition did not warrant application of the doctrine res ipsa loquitur and that such petition did not contain a sufficient allegation of negligence. The ruling of the trial court, therefore, was reversed and the cause remanded with instructions to sustain the demurrer. We did not direct that judgment be entered for the defendant. (See Waddell v. Woods, 158 Kan. 469, 148 P. 2d 1016.) The decision in the former appeal was filed as of May 6,1944, and on the 5th day of January, 1945, the plaintiff filed a motion in the district court for permission to file a second amended petition and in connection therewith presented to the court such second amended petition. In denying the motion the district court signed a journal entry to the effect that the decision of this court in the former appeal precluded the district court from exercising any discretion in the matter and from exercising any jurisdiction, including that of granting the plaintiff permission to file the second amended petition. From such ruling the plaintiff has appealed.
The defendant has filed in this court a motion to dismiss the appeal. The first ground on which süch motion is based is that the order refusing permission to file an amended petition was not a final appealable order. Such contention is not sound. The result of the order made by the district court is analogous in many respects to a demurrer having been sustained to the second amended petition. The order is a final disposition of the plaintiff’s case unless the district court reverses its own order or it is reversed upon appeal. Consequently, the motion to dismiss the appeal cannot be sustained on such ground. The second ground of the motion to dismiss is that the plaintiff’s second specification of error in this appeal is nothing more than a request for this court to reexamine and grant a rehearing in the former appeal. Examination of the second amended petition, however, discloses that it contains material allegations relating to acts of negligence which were not present in the petition which we considered in the former appeal. As a result the motion to dismiss the appeal must be denied.
Having disposed of the motion to dismiss the appeal, consideration must be given to the merits of the appeal. The proffered second amended petition could have been filed without leave of the district court since no answer had been filed, under the authority of G. S. 1935, 60-756. If the petition had been so filed, undoubtedly the defendant would have filed a demurrer thereto and it is reasonable to assume that one of the grounds of the demurrer would have been that the alleged cause of action, if any, was barred by the applicable statute of limitations. . Ordinarily a plea that a cause of action is so barred is an affirmative defense and must be raised by proper pleadings. It can be raised by demurrer when the delay appears in the pleading. Candor commands the admission that the question of the statute of limitations has not been directly raised by the record in the present appeal. Therefore, the legal problem is not exactly the same as that which confronted this court in the case of McCue v. Franklin, 157 Kan. 668, 143 P. 2d 646, because in such case the effect of the statute of limitations had been raised.
We have given consideration to the necessity of the statute of limitations either being pleaded as a defense or properly raised by demurrer in order that no impression may prevail that we are departing from such a rule in this case. The rule is not decisive of the appeal, however, because counsel for the plaintiff do not urge us to apply the rule. In all probability such counsel deliberately have omitted to do so because from a practical standpoint a reversal of the court’s ruling for such a reason alone would result only in the litigation bobbing back and forth, as a cork on turbulent waters, between this court and the district court. The real question to be decided in order to be of aid to both the litigants is whether any cause of action which may be alleged properly in the second amended petition is barred by the statute of limitations.
1. Before giving consideration, however, to such a question it is necessary to discuss briefly the reasons assigned by the trial court for its ruling on the motion for leave to file the second amended petition. If by our silence we should give apparent approval to such reasoning an erroneous inference might result. When this court, upon appeal, merely reverses a district court on its ruling in connection with a demurrer to a pleading and no judgment is directed in behalf of either party, the effect of the ruling by this court is the same for the purpose of further proceedings in the district court as if the district court had made the same ruling without an appeal to this court. Under such circumstances the district court is not divested of any discretion it may have in connection with the filing of subsequent pleadings and is not precluded from exercising further ■jurisdiction in the pending case. In such instance the doctrine of res judicata does not rise to any greater height or expand to any greater extent by reason oí the ruling having been made by this court rather than originally made in the district court. It is possible, of course, that a decision by this court in sustaining a demurrer to a pleading may be of such a nature as to make the rule of res judicata applicable in such a manner that amended pleadings could not thereafter be filed properly in the district court but it certainly does not follow that such a consequence must always occur. In support of their contentions to such effect counsel for the plaintiff cite Penquite v. General Accident & Life Ass’n, 126 Kan. 511, 268 Pac. 851, Burris v. Burris, 140 Kan. 208, 34 P. 2d 127, Beloit Bldg. Co. v. Quinn, 141 Kan. 762, 44 P. 2d 232, and In re Estate of Reed, 157 Kan. 602, 142 P. 2d 824. Such cases are in point and are controlling insofar as they are applicable to the new allegations of negligence in the second amended petition. A different result occurs where a final judgment has been rendered on the merits but we do not have such a case before us. The reasons assigned by the trial court for its ruling upon the motion for leave to amend were incorrect but it does not follow necessarily that the ruling was incorrect. -It is well established that the reasons given for a lower court's order are immaterial if its ruling is correct for any reason. (See Quinton v. Kendall, 122 Kan. 814, 823, 253 Pac. 600, and In re Estate of Bond, 158 Kan. 776, 782, 150 P. 2d 343.)
2. The principal question involved in this appeal develops more logically if we consider first the new matter which was alleged in plaintiff’s second amended petition. Such petition contained, among others, the following allegations which were not included in the petition considered by this court in the prior appeal:
“. . . in reference to specific items of negligence against the defendant says: that from investigation and consultation with skilled men familiar with the methods and operation of X-ray machines, he is informed and believes and therefore alleges the fact to be that the defendant was negligent in that he used voltage that was not proper and of too high a frequency; that the application of the same was too close to the flesh of the plaintiff and that proper insulation and proper discs or mediums were not used to insulate and protect the defendant from burns; that the application of the X-ray was applied too long and so long that it caused the plaintiff to be burned; that in addition thereto the apparatus was defective and not kept in good mechanical condition, in ways and manners not known to this plaintiff.”
In the petition filed prior to the second amended petition the plaintiff had alleged that for certain reasons he was unable to set out in detail or in substance the negligence of the defendant. Consequently, it is very evident that the second amended petition contained substantial additions to the allegations of the prior petition which were material. We have no hesitancy in saying that the rule of res judicata would not prevent the plaintiff from filing such an amended petition, or that the same would be sufficient, if tested for sufficiency, by the filing of a demurrer thereto on the grounds that the second amended petition did not allege a cause of action based on negligence. The second amended petition, however, affirmatively shows on its face that the specific acts of negligence charged against the defendant occurred in the month of August, 1940. The motion for leave to file the second amended petition was not filed until the 5th day of January, 1945 — almost four and one-half years after the alleged negligence occurred. While the question of the effect of the statute of limitations, as hereinbefore stated, reaches us in an irregular manner, principally because of the original irregularity arising by reason of the filing of an unnecessary motion, nevertheless for the reasons herein set out we will consider the effect of the statute of limitations in disposing of this appeal.
Whether the proffered second amended petition alleges a cause of action which is not barred by the statute of limitation is a question, the answer to which is dependent upon the answer to another question, to wit: Did any petition filed in this case prior to the expiration of the period provided in the statute of limitations allege any cause of action? Our decision in the first appeal clearly held that no cause of action predicated upon the theory of res ipsa loquitur was alleged in the involved petition. The second amended petiton does not enlarge in any way, or add any material, allegations as a basis for the application of the rule of res ipsa loquitur. Consequently, all questions relative to such rule are no longer in the case unless we can reverse our former decision in such respect. Such a question will be discussed subsequently in this opinion. In the absence of any such new allegations relative to the theory of res ipsa loquitur we are confined to consideration of whether the petition previously filed within the statutory period contained any allegations of negligence which were sufficient to constitute a cause of action. Refer ence to our prior decision discloses that the opinion contained the following statements:
“As shown by the journal entry, the trial court, in ruling on the demurrer, held that the doctrine of res ipsa loquitur did not apply to the treatment of cases such as were outlined in the petition, but that an allegation, hereafter quoted in full, that defendant had delegated work to a person unknown to plaintiff, waá a sufficient allegation of negligence, and it overruled the demurrer.” (p. 469.)
Therefore, it will be seen that the question whether the petition then being considered contained a sufficient allegation of negligence was directly before us for decision. After quoting in full the part of the petition referred to by the trial court, our opinion continues:
“. . . Without repeating earlier allegations, it will be noted that although the pleader denominated it as an act of negligence, the simple statement of the allegation segregated by the trial court is that the defendant delegated work ‘to a person unknown to this plaintiff and who was not a physician and surgeon and otherwise not qualified.’ There is no allegation that such person did anything whatever. Even liberally construed to mean that such person did the delegated work, there is no allegation that the delegated work was done negligently or contributed to the injury. The mere fact the pleader said the act was one of negligence did not make it so.” (p. 471.)
Later in the opinion will be found the following statement:
“We are of opinion that ... a mere allegation that if the treatment had been properly administered no harm would have resulted, . . . did not state facts sufficient to make the doctrine of res ipsa loquitur apply, . . . If it is not applied there was no sufficient allegation of negligence, and the demurrer to the petition should have been sustained. . . .” (p. 476.)
(Emphasis supplied.)
By reason of the foregoing we think it clearly appears that our opinion in this case on its former appeal must be construed as holding that the involved petition did not allege sufficiently a cause of action based on either the theory of res ipsa loquitur or common law of negligence. Consequently, since no cause of action whatever was pleaded in the prior petition, none existed which could be amended. It is true, of course, that ordinarily an amended petition can be filed within the statutory period even if previously-filed petitions have not alleged a cause of action, but unless some petition is filed within the period provided by the statute which alleges sufficiently a cause of action, then any amendment thereof arrives too late. There is nothing new or novel about the rule which we think is controlling in the present case. Syllabus, paragraph two in the case of Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189, contains a concise statement of the rule. It reads as follows:
“Where the original petition states no cause of action whatever, it will not arrest the running of the statute of limitations, and an amendment made after the bar of the statute is complete must be treated as filed at the time the amendment is made. A cause of action, being stated then for the first time, cannot escape the bar of the statute of limitations by being filed as an amendment.”
Syllabus, paragraph one from the case of Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254, reads as follows:
“When a petition fails to state -a cause of action an amendment which as-' serts a cause of action barred by the statute of limitations does not relate back to the first petition so as to deprive defendant of the defense of the statute.”
See, also, Beneke v. Bankers Mortgage Co., 119 Kan. 105, syl. ¶ 3, 237 Pac. 932. Among later cases holding to the same effect is that of Clark v. Wilson, 149 Kan. 660, 88 P. 2d 1070, the syllabus of which reads as follows:
“Where a demurrer to a petition is sustained on the ground that the petition does not state a cause of action, the filing of such petition does not arrest the running of the statute of limitations, and the filing of an amended petition does not relate back to the date of the filing of the original petition so as to deprive the defendant of the defense of the statute.”
(See, also, the additional cases cited in support of the syllabus at page 662.)
We do not have in this case an instance of amplification of a cause of action imperfectly pleaded. (See discussion of this distinction in Springer v. Roberts, 151 Kan. 971, 101 P. 2d 908.) Since our decision held that no cause of action whatever was pleaded sufficiently by the petition involved in the prior appeal of this case, it must follow that the additional amendments in the proffered second amended petition were alleged too late and any cause of action based upon them is barred by the statute if our decision in the original appeal is to stand as the settled law of the case. Actions to recover damages for negligence in malpractice cases are barred by the two-year limitation statute which begins to run from the time the alleged malpractice was committed. (See Blackburn v. Security Benefit Ass’n, 149 Kan. 89, 86 P. 2d 536, and Becker v. Floersch, 153 Kan. 374, 110 P. 2d 752.)
3. We are asked, however, by counsel for the plaintiff, to review our decision in the preceding appeal of this case. We cannot do so. Assuming for the purpose of consideration that the writer of this opinion and a majority of the members of the court as now constituted are of the present opinion that the result reached in our decision in the previous appeal was erroneous, nevertheless it is the settled law of the case. All questions involved in this present appeal, with the exception of the effect of the amendment and 'the application of the statute of limitations thereto, were considered and determined when this case originally was here on appeal. If we were to consider the entire case again such would be equivalent to granting a rehearing in a cause fully and finally decided nearly a year and a half ago. On June 16, 1944, plaintiff’s motion for rehearing in such case was denied. (See Ingalls v. Smith, 101 Kan. 301, 167 Pac. 1040; State, ex rel., v. Lyons, 106 Kan. 860, 189 Pac. 976; Gratney v. Wyandotte County, 118 Kan. 101, 233 Pac. 795; Robertson v. Labette County Comm’rs, 124 Kan. 705, 261 Pac. 831; and also Fleming v. Campbell, 148 Kan. 516, 83 P. 2d 708.)
The ruling of the trial court is affirmed and it is directed that judgment be entered for the defendant. | [
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The opinion of the court was delivered by
Wedell, J.:
The claimant prevailed in a workmen’s compensation case. The respondent and its insurance carrier appeal.
The alleged errors are: (1) The district court erred in finding a written claim for compensation was made in compliance with G. S. 1943 Supp. 44-520a; and (2) there was no substantial evidence to support (a) the finding upon which the final receipt and release of liability was set aside, or (b) the finding of extent of disability.
Facts essential to review will be narrated in connection with the treatment of the respective assignments of error and in the order above stated.
The claimant, Fred R. Rubins, was an employee of respondent, Lozier-Broderick and Gordon. Respondent was a contractor helping in the construction of the Sunflower Ordnance Works at De Soto. On June 21, 1943, claimant fell from a motor grader, a distance of seven or eight feet, and sustained injuries to his back, left foot and suffered a left inguinal hernia. At the end of the shift, that same morning, claimant reported the accident to his boss, respondent’s labor foreman, James Swearengin. The latter sent him to the plant hospital for first aid. Respondent’s superintendent was also advised of the accident. From the plant hospital respondent sent claimant to a hospital at Lawrence where a hernia operation was performed by Dr. M. T. Sudler. Respondent’s foreman, Swearengin, visited claimant in the hospital at Lawrence. Claimant remained in the hospital two weeks. While in the hospital and on June 30 he wrote the following letter to respondent’s foreman:
“Lawrence, Kan.
“June 30, 1943
“Mr. Jim Swearington.
“As you know I got hurt on the job a week ago and I am in the hospital at Lawrence. I want my compensation. Please see about this for me and see I get my check. Yours respectfully. Times Shack No. 9.
“Fred Rubins 8-2252.”
The above letter, according to testimony adduced .on behalf of claimant, was delivered to Swearengin at Times Shack No. 9 by Carl Musselman, a friend of the claimant, about the first of July, 1943. Claimant asked Musselman to deliver the claim and to do what he could to collect the compensation. Claimant received compensation after the delivery of the above claim and respondent paid the hospital and doctor’s bill.
Appellants frankly concede the employer had notice of the accident under the requirements of G. S. 1935, 44-520. They, however, contend compliance with G. S. 1943 Supp. 44-520a, pertaining to service of a written claim for compensation, constitutes an essential prerequisite to recovery and that if a written claim was executed by claimant it was not served pursuant to the requirements of that statute. The pertinent part thereof reads:
“No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail within one hundred twenty days after the accident. . . .”
The specific complaints are service of the written claim was invalid because (1) it was not served personally by claimant and (2) it was not delivered to the employer or to his duly authorized agent. Touching the first complaint it will be observed the statute provides for making service of the claim in two ways. One is by direct delivery and the other is delivery by registered mail. It could not be argued with much, if any, persuasiveness that the law requires the injured workman to personally deposit the registered claim at the post office or in a mail box. It is difficult to understand how it can be contended with greater merit that the statute makes it mandatory for the workman to personally deliver the claim to one of the persons designated. All the statute expressly requires is service of the claim in one of the two methods prescribed. It does not expressly require the manual act of delivery to be performed by the injured workman. Moreover what practical difference could it make to the employer who delivered the claim so long as it was delivered and the employer knew, or should have known, the workman was claiming compensation? A similar contention received our consideration in Bull v. Patti Const. Co., 152 Kan. 618, 106 P. 2d 690. In •that case the workman directed his wife to try to get compensation for him if he was entitled thereto. She in turn employed an attorney who not only filed the claim but signed it on behalf of the workman. It was contended the workman was obliged to sign the claim personally. We held the statute did not make his personal signature mandatory and that an attorney, if duly authorized to do what was necessary to get the compensation, could sign the claim for the workman. We concluded the claim when served met the intent and purpose of the law in that it apprized the employer of the claim and gave him the opportunity to fully investigate the merits thereof. We think that is true here where the claim was actually signed by the workman and was delivered by another duly authorized to do so.
Did service of the claim on respondent’s labor foreman constitute service on the employer’s duly authorized agent? Appellants contend it did not for the reason there was no evidence James Swearengin had been duly authorized by respondent to receive claims for compensation. The statute does not say the claim must be delivered to the employer or to his agent duly authorized to- receive claims for compensation. It says the service shall be by delivery to the employer or to his duly authorized agent.
In the instant case we need not decide that delivery of the claim to any agent of the employer constitutes compliance with the statute. The question presented here is much narrower than that. In this case Swearengin was not only claimant’s boss but he was respondent’s labor foreman. He was the agent of the respondent who naturally and most logically would occur to any workman as the proper agent upon whom to serve the claim. It was this agent of respondent who possessed all the apparent authority to provide medical care and treatment to an injured workman. Such care and treatment constitute compensation under the act. Swearengin exercised such authority for and on behalf of the respondent and respondent paid for the medical care and attention Swearengin provided. It was this agent who visited claimant at the hospital after the operation. It was he to whom claimant reported for duty after his release from the hospital. In other words, all of claimant’s contacts with respondent were through his boss', respondent’s labor foreman. It well may be doubted that respondent had any agent who was formally designated as its duly authorized agent to receive claims for compensation. If respondent had such a duly appointed agent the record does not disclose it. It seems to us in view of the record in this particular case and under the legislative mandate prohibiting the application of technical rules of procedure in compensation cases, G. S. 1935, 44-523, we would not be justified in saying Swearengin was not a duly authorized agent of respondent upon whom service of the claim could be made.
Counsel for appellants earnestly direct our attention to testimony which they believe clearly discloses no written claim was ever delivered to Swearengin. We have not overlooked that testi mony and must admit some of it is quite convincing. Nevertheless the jurisdiction of this court is limited to questions of law. (G. S. 1935, 44-556.) This court is, therefore, precluded from disturbing any finding of the district court which, as here, is supported by substantial evidence. (Johnson v. Foss, 152 Kan. 586, 106 P. 2d 648.)
The district court set aside a receipt and release from liability after finding claimant was misled into the execution thereof and that it was executed by mutual mistake. It was set aside in response to a petition filed June 29, 1944, based on mutual mistake and inadequate compensation. The receipt was taken pursuant to the provisions of G. S. 1935, 44-527. No award for compensation was made. The release was executed August 21, 1943, approximately one month after claimant returned to his employment with respondent. It was executed in consideration of payment of compensation for two weeks and six days temporary total disability in the sum of $51.42 and the payment of hospital and medical expenses by respondent.
- Was there substantial evidence to support the trial court’s finding the release should be set aside? Doctor Sudler made three or four examinations of claimant after claimant left the hospital and before he returned to his work on July 19, 1943. On that date claimant continued to suffer pain in his back and left foot, but the doctor advised him the soreness of which he complained would disappear in time, with exercise. Claimant was'unable to perform the heavy work he had previously done and was assigned to light work. He, however, suffered some pain in his groin, back am. foot. That was his condition when he signed the release. He did not read the release.. He said he thought he was signing a receipt for compensation paid. He did not know the person who obtained the release or whom he represented. In the course of their conversation claimant stated he was not entirely well. He also advised such person as follows: Doctor Sudler told him the pain would disappear later and that he would be all right; Doctor Sudler had a good name; he thought Doctor Sudler was a good doctor and knew what he was talking about; he was depending on what Doctor Sudler told him.
Appellee was retained by respondent on light work until September, 1943. When respondent no longer had such work for him he obtained light work, janitor work and doing errands, at the bomber plant in Kansas City. He was obliged to take time off from the last employment and did so for a month on two separate occasions. The layoffs were occasioned by pain in the ruptured region and the swelling of his foot. The layoffs were recommended by the employer’s doctor. Claimant had the services of a nurse on the occasion of those layoffs. When his physical condition failed to improve he consulted Dr. D. M. Nigro who examined him on June 28, 1944, and reported as follows:
“The above patient came into my office on June 28th, stating that he was injured while working for the Lozier, Broderick & Gordon Company at the Sunflower Ordnance Plant, while working on a Steamer Cleaning Machine. He complained of pain and soreness about the left inguinal region, left foot and back. He stated that he was operated on for a left inguinal hernia and examination shows a scar; he now has a post-operative hernia which will have to be repaired. Examination of the left foot shows swelling and tenderness of the soft parts, and was quite swollen when he was in my office. He complains of pain and soreness in this foot, especially when he is up and around for any length of time. Examination of the back shows a lumbosacral sprain with muscle spasm and tenderness with limited motion. Patient states that pain radiates from the back down the left leg to the foot. There may be a possible rupture of the intervertebral disc. Patient is temporarily totally disabled and will be for some time. He needs an operation to repair the hernia on the left side, and needs some traction and hospitalization for his back. He was advised to wear a truss and back support and to build up his left foot by putting a small sponge in the shoe.' He was given some sedatives for pain and rest and a tonic. Will keep you advised regarding his progress.”
Appellants argue there was no evidence of misrepresentation or fraud in obtaining the release and that mutual mistake was not established. Appellee did not seek cancellation of the release on the ground of fraud but on the grounds of iputual mistake and inadequate compensation. Appellee related the conversation he had with respondent’s doctor at the time of his last examination. That occasion was approximately a month before he signed the release. His testimony disclosed he had every confidence in Doctor Sudler’s integrity, professional ability and judgment. He said, “I was depending on what the doctor told me.” Appellants did not produce Doctor Sudler to refute appellee’s testimony. The district court undoubtedly believed respondent’s doctor had not deliberately misled claimant with respect to his recovery. In other words, the district court concluded the doctor was in error and that appellee believed and acted upon the honest but mistaken advice and judgment of respondent’s doctor. That they were mistaken is disclosed not only by appellee’s testimony concerning his failure to recover but also by that of Doctor Nigro. Appellants subpoenaed no doctor to refute the testimony of Doctor Nigro with respect to claimant’s condition and did not request the appointment of a neutral physician to examine claimant. Under our law claimant would have been entitled to recover sixty percent of his average weekly wage during twelve weeks for the traumatic hernia alone. (G. S. 1935, 44-510 [20].) Obviously the compensation paid in the sum of $51.42 was grossly inadequate and the release was properly set aside. (Weathers v. Bridge Co., 99 Kan. 632, 162 Pac. 957; Walker v. Kansas Gasoline Co., 130 Kan. 576, 287 Pac. 235.)
Appellants finally urge the court erred in allowing an award of twenty percent general disability. The only testimony on that point was that of Doctor Nigro who estimated the temporary total disability would continue for a period of six or eight weeks and would be followed by a “permanent partial disability of in the vicinity of 20 percent.”
The specific complaint is that the testimony of Doctor Nigro did not; affirmatively disclose he had taken into account disability resulting from a previous injury to the same foot of appellee suffered in September, 1942, for which compensation had been paid by a previous employer.
It is true there is nothing in Doctor Nigro’s testimony concerning the effect’of the former injury. Appellants might have, but did not, interrogate Doctor Nigro with respect to the question of continuing disability from the former injury. Appellants argue the burden was on appellee to establish the extent of disability appellee suffered from the injury now in question. They are correct in that contention. From the record before us it would appear the two injuries probably were not to the same part of the foot. That fact, however, may not be material. In any event appellee had been doing his regular heavy work satisfactorily for respondent prior to the injury now in question. Appellee also testified he had practically recovered from the former injury to his foot when he suffered the last injury. It follows there was testimony which clearly tended to support the trial court’s finding of disability resulting from the injury now in question. Under the circumstances we are not inclined to disturb the finding.
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of grand larceny for having taken cattle in violation of G. S. 1935, 21-533. The principal question raised by the appeal is whether there was sufficient evidence to prove felonious intent on the part of the defendant.
A summary of the evidence introduced by the state follows: A fence separated two pastures. In one of them the complaining wit ness, Herbert Olson, had about 64 head of cattle; in the other the defendant was pasturing about 140 head of cattle. On November 30, 1943, shortly after noon, Herbert Olson drove into his field with a truck and saw therein a man on horseback driving a bunch of cattle. He drove until he reached the.wire fence, stopped his truck and ran over to where the cattle were being driven. At such time he saw John Hessman; also the defendant;-the defendant’s brother, John Goldsberry; and John’s young son: Hessman was coming down the fence driving a steer which Herbert Olson testified belonged to him. When Olson saw Hessman he asked him what he ■was doing, and Hessman replied, “We are after our cattle.” Olson said, “That is not your cattle,” and scared the steer back. An argument followed. Hessman and Olson went over to where the defendant was driving 12 or 13 cattle, all of which Olson testified were his. The defendant was- driving a sedan. Olson got in front of the cattle and hollered.with the result that the cattle scattered and ran away toward the northwest. The defendant drove the sedan rapidly toward Olson, who side-stepped the car. The defendant turned the car around and came back and drove it again immediately toward Olson, who again got out of the way. The defendant stopped the car and he and-Olson started talking. Olson asked the defendant what he thought he was going to do and he replied that he would take the cattle down to Hessman’s and shear them. Olson protested but the defendant instructed the men to get the cattle and started to leave. Olson yelled at the defendant; he stopped and the two of them had a further talk. Olson got on the running board of the car and rode with the defendant down to the gate and another argument occurred as to the ownership of the cattle. In the course of the argument Olson offered to bet $100 that the cattle belonged to him and the defendant offered to bet $1,000 that they belonged to the defendant-. .Olson did not take the bet, he said, because he did not have that much money. The brother of the defendant took three steers and went west to where he met his boy who was driving the other cattle; Olson again tried to head them off and again the defendant drove the car directly toward Olson but stopped before he got to him. Hessman got -out of the car and approached Olson with a knife and said, “Stay away from them cattle.” Olson started away and Hessman got in the car. The defendant, Goldsberry, jumped out of-the car, called-Olson a profane name and when about eight feet away from Olson pulled-out a gun; Hess- man told the defendant to shoot Olson, whereupon Olson ran. He went home and got his car. Later that day he saw the men herein named driving eight or nine head toward Hessman’s place. Olson and three other men went back to the field where the altercations occurred and examined the tracks made by the cattle. The tracks went down by the electric one-wire fence half a mile south to the loading docks of Hessman’s place, where the defendant had told Olson he was going to take them. Olson counted his cattle the evening of the same day and there were three steers and four heifers missing. He testified that the defendant’s cattle were branded with “JH” and that his cattle were branded with a bar followed by “0” on the left neck. At the time of the alleged larceny Olson’s brands had been on the cattle a year except in the case of the heifers which had been branded about ten months. The heifers had been branded ’ previously on their left hips but when Olson purchased them he put his own brand on them with acid. The steers also had other brands on them.
Two days after the taking of the cattle Olson went to the Dodge City stockyards where he found three steers and two heifers in a pen by themselves. With them was a little roan which had been with the herd when it was being driven from Olson’s field. Olson had with him the sheriff and the undersheriff and two other witnesses. They took the cattle into the chutes and sheared all of them except the little roan. The shearing disclosed some identification marks on the left hips of the heifers and one heifer had a dim “0” on the left neck. The other one was scarred some on the neck. Olson testified, however, that he could discern an “0” Bar on the neck but it wasn’t too plain. He testified that when he branded the heifers their hair was long and that he used cold acid which would not burn a brand as plainly as hot acid: Olson testified that on the three steers he found his brands on their left necks and that he found other identifying brands on their left hips and that they were his cattle. While the parties hereinbefore named were shearing the cattle the defendant appeared and Olson asked him how he liked the looks of the brands. Olson also asked him, “What is your brand?” but the defendant did not say anything. Olson then said, “Now don’t you wish you hadn’t pulled that gun,” and the defendant said, “. . . if it had been a gun, you couldn’t have run fast enough.” During this conversation Goldsberry was in a position to see the brands on the cattle after they had been sheared.
On cross-examination by way of explanation Olson testified that the two herds of cattle had been on adjoining pastures, separated only by an electric one-wire fence, for about six weeks. He also admitted that he had talked to John Goldsberry about getting a stray steer out of Olson’s herd but denied that he talked to him about getting any more of the defendant’s cattle out of the herd and he denied making any arrangements with John Goldsberry to go with him to see if any of the defendant’s cattle were in Olson’s herd. He testified further that Hessman had not threatened to cut him with a knife and that he was not afraid of Hessman and that Hessman did not strike him. Olson admitted that when the defendant told him' he was going to take the cattle down to 'Hessman’s and shear them he stated as follows: “No, you are not, we will take them to Andjr Carlson’s.” According to Olson it was his thought that the defendant and those accompanying him were going to take the cattle and shear them to see what the brands were. At such time Olson did not tell the defendant where Olson’s brand would be found on the cattle. He admitted that the brands on his heifers were very indistinct; he further admitted that it was a custom among cattle men when cattle got mixed irp with other people’s cattle for the owners to go over and inspect the herds of other people to see if any of their cattle were in the other herds and that he had done so himself.
John Schean was called as a witness for the state and testified that he had sold calves to Olson and that they had Colorado ranch brands on them of various kinds and descriptions; that he saw the cattle in the pen at the Dodge City stockyards and that he noticed a “UD” brand on one heifer but that he did not attempt to see whether the cattle were some of the same ones which he had sold to Olson in February. He further testified that he was not able to see whether there were any brands on the necks of the cattle which he saw at the stockyards; that all he saw on the necks looked like little marks and didn’t show up.
Ed Maskus, who was present at the shearing in the stockyards, testified that after the cattle were sheared various marks were visible on them. He was asked, “Was there any evidence of any brand on the left neck of the heifers?” and replied, “It was rough, that is all I could say.” He stated the defendant Goldsberry was ten or fifteen feet away while the shearing was going on and was not invited over to help with the shearing or look at the results. He further testified as follows: “We couldn’t and didn’t see the ‘O’ Bar before they were sheared.”
Two other witnesses testified as to what marks they saw on the cattle after they were sheared and one of them testified that an acid brand put on in the winter doesn’t show much through long hair and that lots of times it never gets through to show at all.
Walter Smith testified in behalf of the state that he was a yard foreman employed by the Winters Livestock Commission Company and that six head of cattle were delivered to such company by Albert Horton on behalf of the defendant in November, 1943, for the purpose of having them sheared. He testified that the cattle remained in the sales pavilion for a little over a month and were eventually sold by the defendant. On cross-examination, in further explanation of the sale, he stated that at the time they were sold he knew that there had been a replevin action brought by Olson to recover possession of them and that the defendant had filed a redelivery bond in the replevin action. He further stated that he understood the cattle were brought to the yard to be sheared for the.purpose of determining the ownership of the cattle and that the defendant had so advised him by stating “there was a little misunderstanding about the cattle and he (the defendant) wanted to shear them to see who they belonged to.” He was asked, “Told you to hold them until they determined the ownership?” and answered, “That is right.” On cross-examination he enlarged Upon ‘the conversation with the defendant and stated that the defendant had said, “There is a question about who they belong to. If the cattle don’t belong to me and belong to Mr. Olson, I will load them in a truck and take them back.”
D. J. Bowie, who was the sheriff of Hodgeman county, testified that he examined the tracks in the field from which the cattle had been faken but couldn't tell too much about them. He further testified that he went to the Dodge City sales pavilion and inquired for the cattle the defendant had brought in and was directed to a pen where there were six head — three large1 steers, one smaller steer, and two white-faced heifers. The five biggest ones were driven into a chute and sheared. After the shearing he was able to identify certain brands on their hips and was able to make out a very poor brand in the middle of a Circle Bar on the heck of one of the cattle and that one of them did not have a readable brand although there was some roughness that might be the signs of a brand. He stated that when the shearing occurred the defendant came down and that the witness in the presence of the- undersheriff, John Lighter, had a conversation with the defendant. His testimony is as follows: . . We asked him if he claimed these cattle and he said he did. We asked him about the brands, but he didn’t have any .mark on them he could show us.” John Lighter, the undersheriff, gave testimony as to the marks disclosed by the shearing, which did not differ materially from evidence previously herein referred to.
A stipulation was filed in the case to the effect that at the time of the trial a replevin action also was pending in the district court of Ford county, Kansas, in which action Herbert Olson was the plaintiff and Charles Goldsberry was the defendant. The stipulation sets forth that the replevin action was brought to recover possession of three white-faced steers and two white-faced heifers, the same being the cattle referred to in the case at bar; that the aforesaid cattle had been taken into possession by the sheriff under the writ of replevin; that the defendant later gave a redelivery bond; and that upon the giving of such bond the cattle were redelivered to the defendant. E. W. Nickels testified that the cattle were sold by the Winters Livestock Commission Company of Dodge City for Mr. Goldsberry on December 16, 1943.
At the conclusion of the foregoing testimony the defendant demurred to the evidence and moved to be discharged for the reason that the evidence failed to establish a prima facie case of violation of any law of the state of Kansas. The information sets forth that on the 30th day of November, 1943, the defendant, Charles Golds-berry, and John Hessman did then and there unlawfully, feloniously, and wilfully, take, steal and carry away, of the property of Herbert Olson three short two-year-old steers branded “0” Bar on left neck valued at $77 each and one short two-year-old heifer branded “UD” on left hip valued at $77, and also one short two-year-old heifer branded Bar “W” on left hip, valued at $77, with the intent to convert the same to their own use and deprive the owner thereof. The record does not disclose the result of the case against John Hessman but the defendant, Charles Goldsberry, was convicted and sentenced to the penitentiary to serve from one to seven years. We are not concerned for the present with the defendant’s evidence. Consideration must be given primarily to the question of whether the demurrer and motion to discharge the defendant should have been sustained.
Counsel for the state contend that there was substantial evidence, even though some of it may have been circumstantial, to warrant submission of the case to the jury and that the jury was justified in finding felonious intent on the part of the defendant. In support of such contentions they cite State v. Wood, 145 Kan. 730, 67 P. 2d 544; State v. Smith, 158 Kan. 645, 149 P. 2d 600; and State v. Thomas, 155 Kan. 374, 125 P. 2d 375, from which case the following is quoted:
“It is not the function of appellate courts, which have not had the opportunity afforded in the trial court of noting the demeanor of witnesses and otherwise passing upon their credibility, to weigh conflicting evidence. Upon appeal from conviction in a criminal action the evidence must be viewed in the light most favorable to the state, and the verdict will not be disturbed if there was substantial evidence, even though entirely circumstantial, as a basis for a reasonable inference of guilt.” (p. 375.)
In reply to the appellant’s contention that there was no substantial evidence to prove felonious intent, appellee argues in substance as follows: That the circumstances do not disclose a peaceable call on a neighbor to obtain permission to go upon his premises to search for missing cattle but a bold daylight raid upon his herd during the noon hour, carried out by a force of men sufficient to overcome any opposition, if detected, and which, if the complaining witness had not appeared on the scene as he did, might have resulted in disappearance of cattle. Appellee stresses that the appellant employed sufficient force to overcome any resistance on the part of the witness Olson and that appellant actually took the cattle with knowledge that they were being taken against the will of the man in whose possession they were under a claim of ownership. It is further contended that the defendant’s saying that he wanted to take the cattle to Hessman’s to shear them was merely an empty promise not made in good faith as evidenced by his failure to shear them and causing them to be removed immediately from the place where he told the complaining witness they would be taken. Appellee also emphasizes the. fact that after the taking of the cattle occurred the defendant was indifferent as to the result of the examination made for identifying marks and failed to call attention to any brand on the cattle which might have assisted in determining the ownership. Appellee also asserts that the statement made by the defendant to the effect that he would immediately haul the cattle back in case they were not his was mere idle talk and that defendant’s failure to actually haul them back demonstrated such fact. The appellee advances further arguments, but nearly all of such additional arguments are based upon discrepancies appearing in the tes timony offered in behalf of the defendant and with which wc are not presently concerned.
The appellant insists that the only reasonable conclusion which can be drawn from the testimony offered in behalf of the state is that the defendant and the complaining witness had a dispute over the ownership of the cattle and that the defendant took them for the purpose of identification with full knowledge on the part of the complaining witness. Appellant insists that there was no evidence indicating that at the date of the alleged crime the defendant intended to take the cattle permanently; that all of the evidence and circumstances are consistent with the theory that the cattle were taken for the purpose of identification and that the complaining witness’ own testimony affirmatively shows that the cattle were being taken for such purpose. In support of such assertion appellant points out that the prosecuting witness admits that the defendant wanted to take them down to Hessman’s place for the purpose of identifying them and that the prosecuting witness wanted them taken to another place owned by Andy Carlson. Appellant also insists that the testimony introduced by the state to the effect that the defendant informed the foreman of the Winters Livestock Commission Company that the six head of cattle were to be held for inspection to determine their ownership and that the defendant would take the cattle back to Mr. Olson in case they proved to be his cattle conclusively shows that when the cattle were taken, to wit: November 30, 1943, the defendant did not then intend to deprive the true owner permanently of possession of the cattle. There is merit in such contentions and reference to decisions must follow.
Counsel for appellant cite the case of State v. Shepherd, 63 Kan. 545, 66 Pac. 236, the second paragraph of the syllabus of which reads as follows:
“The term felonious intent, as used in relation to larceny, ‘means to deprive the owner, not temporarily, but permanently, of his property, without color of right or lawful excuse for the act, and to convert it to the taker’s use without the consent of the owner.’ (In re Mutchler, Petitioner, 55 Kan. 164, 40 Pac. 283.)”
The opinion in such case reads as follows:
“The guilt or innocence of appellants depends on the presence or absence of a felonious intent in their minds at any time while in the possession of the saddle to deprive the owner permanently of his property and convert it to their own use. As was said by Chief Justice Horton, in In re Mutchler, Petitioner, 55 Kan. 164, 40 Pac. 283: ‘A felonious intent means to deprive the owner, not temporarily, but permanently, of his own property, without color of right or excuse for the act, and to convert it to the taker’s use without the consent of the owner.’ (See, also, Schultz v. The State, 30 Tex. App. 94, 16 S. W. 756; Mitchell et al. v. The Territory of Oklahoma, 7 Okla. 527, 54 Pac. 782; People v. Brown, 105 Cal. 66, 38 Pac. 518.)” (p. 547.)
As before stated, the state contends that the jury was entitled to draw inferences in part from circumstantial evidence. Let us look at the law applicable to circumstantial evidence in criminal cases. It differs materially from the rule in civil cases. A recent statement of it will be found in the case of State v. Robinson, 158 Kan. 287, 147 P. 2d 374. From the opinion by Mr. Justice Smith the following is quoted:
“The defendant relies on the rule stated by this court many times that in order to sustain a conviction the circumstances must be so strong that they exclude every reasonable hypothesis except that of the guilt' of the defendant.
“In State v. Sweizewski, 73 Kan. 733, 85 Pac. 800, we said: ‘The circumstances must be so-strong as not only to be consistent with the theory of the defendant’s guilt, but they must also exclude every reasonable hypothesis except that of the guilt of the defendant. The facts above relied upon do not exclude every reasonable hypothesis save that of the defendant’s guilt, but do suggest that the defendant for numerous reasons may be entirely innocent.’ (p. 734.) see, also, State v. Brizendine, 114 Kan. 699, 220 Pac. 174; State v. Hunter, 50 Kan. 302, 32 Pac. 37; State v. Murphy, 145 Kan. 242, 65 P. 2d 342, and State v. Morton, 91 Kan. 908, 139 Pac. 409.” (p. 288.)
A general statement of the law applicable to the question raised by the appeal will be found in 32 Am. Jur. 936, § 41, which reads as follows:
“An intent to steal property and a bona fide claim of right to take it are incompatible. One who takes property in good faith, under fair color of claim or title, honestly believing that he is its owner and has a right to its possession or that he has a right to take it, is not guilty of larceny even though he is mistaken in such belief, since in such case the felonious intent is lacking. This is true even though the property thus taken is ultimately lost through the taker’s negligence, or even though the taker may subsequently, as on discovering that he was mistaken, convert the property to his own use. The fact that the taker employs force or a trick to obtain what he thinks he owns or has a right to take does not necessarily alter the rule. A fortiori, if one takes his own property, no felonious intent can be predicated with respect to such act; . . .”
Application of the foregoing principles to the present case causes us to be concerned with the following observations: It is at least rather unusual for a man who intends to commit larceny to take with him two other men and his brother’s young son, an automobile and a horse, and in broad daylight drive out to a clearly visible position in an open field. Such circumstances would certainly be compatible with an intent on the part of the man to obtain his own property rather than to steal another’s. According to the record, the first words spoken by either of the original defendants were, “We are after our cattle.” At that time the defendant and those associated with him had rounded up 12 or 13 cattle. An argument took place over who owned the cattle but when the defendant left the field only six or seven were taken. It should be noted that of the six which finally reached the stockyards the controversy as to ownership continued as to only five. It is evident that the complaining-witness must have been satisfied that the little roan calf actually belonged to the defendant. That an argument in good faith took place between the complaining witness and the defendant as to the proper ownership of the cattle was admitted by the complaining-witness and otherwise there would have been no occasion for his testimony to the effect that he offered to bet $100 that the cattle were his and the defendant offered to bet $1,000 that the cattle belonged to him. If the defendant was intending at the time to make a permanent theft of the cattle regardless of their true ownership, there would have been no occasion for him to have advised the complaining witness that he was taking them to John Hessman’s place for the purpose of having them sheared; likewise, there would have been no occasion for the complaining witness to have suggested that the cattle be taken to Andy Carlson’s place instead of John Hess-man’s for the same purpose. One of the most convincing elements supporting the contention of the defendant as to the intent of the defendant arises by reason of the complaining witness’ statement reading as follows: “They were going to shear them to see where the brands were.” It must follow that fair presumptions can be predicated upon such evidence to the effect that the complaining witness had succeeded in retaining approximately fifty percent of the cattle originally in question, by reason of his claim of ownership, and that he understood that the remaining 6 or 7 cattle were being taken for the purpose of having them sheared in order to identify them either as his cattle or otherwise. Such hypothesis is as reasonable as any suggested by counsel for the state and it can be said with certainty that it is not excluded by circumstantial evidence. It is true, as the state contends, that the defendant did not leave the cattle very long at John Hessman’s and that the actual shearing did not take place there, but they were taken to Hessman’s place according to the evidence introduced by the state. Again, it must be observed that it is most unusual for a man who intends to commit a theft to advise the owner of the property where the property will be taken. Such a circumstance is not compatible with concealment and intent to deprive the owner of property without any color of right. The state’s testimony clearly discloses that the markings on the cattle were so obscure as to necessitate the shearing in order to determine to whom they belonged. Another very impressing circumstance showing the intent of the defendant was developed by the testimony of the state when its witness, Walter Smith, testified, without contradiction, that the defendant stated at the time he placed the six cattle in the stockyards, as follows: “There is a question about who they belong to. If the cattle don’t belong to me and belong to Mr. Olson, I will load them in a truck and take them back.” The defendant had ordered them placed in a separate pen for the purpose of having them identified. The state insists that such circumstances demonstrated mere idle talk. Such insistences may be justified but can it be said beyond a reasonable doubt that such directions and explanations were not indicative of a lack of criminal intent on the •part of the defendant to deprive permanently the true owner of the cattle of their possession? Again, it seems quite reasonable to infer good faith from such circumstances rather than bad faith. The state meets such an argument, however, by calling attention to the fact that the shearing disclosed the cattle belonged to the complaining witness — a fact which the defendant did not admit even at the stockyards — and that the defendant did not in fact return them to Olson but regardless of their ownership caused them to be sold. Such is true but before the cattle were sold the complaining witness had sued the defendant in a replevin action and the defendant had furnished a redelivery bond. There is nothing in the present case to indicate any effort on the part of the defendant to conceal the cattle so that they could not have been examined again and again to the entire satisfaction of the complaining witness long before they were sold after the replevin action had been instituted. Appellant’s giving of the redelivery bond was consistent with his claim of ownership and it is difficult to see anything in such circumstances indicative of criminal intent.
The state vigorously contends that the fact the defendant used and was accompanied by too much force in connection with the tak ing of the cattle from the field; that his attempts to run into the complaining witness with a car; the fact that he- had a gun; and that his co-defendant had a knife in his hand, all created a strong inference that he intended to take the property regardless of the claimed ownership by the complaining witness. Do such circumstances, however, necessarily lead to the conclusion that it was the defendant’s intent to take another’s property rather than his own? The use of force when accompanied by a color of right or lawful excuse for the act is not in and of itself sufficient to prove the criminal intent incident to larceny. The fact that the party taking the property may have been mistaken in his claim to ownership does not alter the rule provided he honestly believed that the property belonged to him. On this point, in addition to the text hereinbefore cited, see the case of rugless v. State, 97 Ark. 152, 133 S. W. 600, from which the following is quoted:
“The testimony on. the part of the state shows that the taking was accompanied by means of putting Holmes in fear, . . . ‘Where, in an indictment for robbery, it appeared in evidence that the taking of the property by the defendant was violent, but done in the presence of others under a claim of title, held, that such taking did not constitute the crime of robbery.’ Brown v. State, 28 Ark. 126. The evidence for the state shows that the defendant took the horse dn the presence of others under claim of title, and there is an absence of criminal intent, which must operate jointly with the act to constitute larceny.” (p. 153.)
This opinion would be prolonged unnecessarily by further discussion of each and every contention advanced by the respective parties. It is sufficient to say that, after carefully reviewing all of the evidence introduced on behalf of the state and giving the state the benefit of every favorable inference which can be deduced therefrom, the court is of the opinion that such evidence and the circumstances were insufficient, as a matter of law, to prove felonious intent on the part of the defendant and that the demurrer and the motion to discharge the defendant should have been sustained.
Parties interested in the general question raised by the appeal may find aid by referring to the following incomplete list of rather recent cases, which in substance sustain the conclusion herein reached: Baugh v. State, 200 Ind. 585, 165 N. E. 434; People v. Slayton, 123 Mich. 397, 82 N. W. 205; People v. Shaunding, 268 Mich. 218, 255 N. W. 770; Lechner v. Ebenreiter, 235 Wis. 244, 292 N. W. 913; State v. Pullen (Del.) 3 Penn. 184, 50 Atl. 538; Sisson v. State, 16 Ariz. 170, 141 Pac. 713; Linde v. State, 61 Okla. Crim. 136, 66 P. 2d 527; Stanley v. State, 61 Okla. Crim. 382, 69 P. 2d 398; Griffin v. The State, 87 Tex. Crim. Rep., 194, 220 S. W. 330; Galloway v. State, 105 Miss. 897, 63 So. 313; and also see State v. Lowe, 67 Kan. 183, 72 Pac. 524.
The trial court sustained the conviction of the defendant. The judgment of the trial court is reversed with directionsAo discharge the defendant.
Harvey, C. J., and Thiele, J., dissent. | [
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The opinion of the court was delivered by
Parker, J.:
In this workmen’s compensation case an award was denied by the commissioner. The claimant appealed to the district court. There he was successful. The award and judgment was permanent disability with payments at the rate of $18 per week for a period not to exceed 415 weeks. The employer appeals.
Pertinent issues in the proceedings below are disclosed and can best be stated by quoting a stipulation entered into between the parties.- It reads:
“It is stipulated and agreed by and between the parties that -on October 27, 1944, that respondent was operating under the Workmen’s Compensation Act, and has no insurance'; that claimant was in its employ at an average weekly wage of $3-1.20; and that notice was had and claim made within the statutory period. It is agreed that the remaining questions in issue are whether or not the claimant sustained personal injury by accident arising out of and in the course of the employment; the nature and extent of the disability; and the amount of compensation due, if any.”
Perhaps unnecessary, except for the enlightenment of future readers of this opinion is a brief résumé of the events and circumstances leading up to the occurrence relied upon by claimant as the basis for his claim.
The evidence discloses that on October 27, 1944, the claimant was employed by the respondent as a guard operator; that at the time he was sixty-two years of age and weighed approximately 210 pounds; that prior to his employment in January, 1944, he had taken a preemployment physical examination; that his duties were to watch the board for one hour and to be off the next hour but to remain within call so that in case of emergency he would be available; that between four and five o’clock in the morning of October 27, 1944, was his hour off the board, and he went in a room close by, which at one time had been rented by the Western Union to respondent, but since June, 1944, has not been occupied by it or any of its equipment; that the respondent company is controlled by the Western Union and the operating facilities of both are housed in the same building; that respondent’s employees had not been told not to go in the room during the hour off the board, and that some of them went in there and read; that while the claimant was in this room he was sitting in a chair with rollers and had his feet on the desk and was reading a newspaper; that about four-twenty o’clock he reached to pull the chair closer to the desk and it slipped out from under him and he fell backward on the cement floor; that he did not strike his head and was not unconscious; that he got up and sat in the chair for a little while; that he felt pretty badly shaken up, and jarred all over; that at five o’clock he went back on the board and shortly thereafter he could not reach up to mark the tape; that he could not get his arm up there because it was weak; that he stayed on the board fifteen or twenty minutes and after talking to his fellow workman drove his car home and went upstairs; that he had difficulty getting up the stairs because his right hand, arm, and leg were not properly coordinating; that he continued to lose the use of the arm and leg; that Doctor Padfield was called and he was sent to St. Joseph’s hospital, where he remained until November 6, 1944; that since such date he has been unable to use his right arm or his right leg, cannot walk, and is totally disabled.
Since the rendition of the judgment in district court the issues have been further simplified. On this appeal the appellant concedes the alleged accident occurred in the course of employment, that appellee is totally and permanently disabled, and if such accident occurred and resulted in disability the amount of compensation was correctly computed by the trial court. It frankly states the only question presented here for review is whether the injury to the appellee arose “out of employment.”
Embodied in the main issue as stated by appellant are two questions, which if it cannot be said they have been abandoned it most certainly can be stated they are not seriously urged as grounds for reversal of the judgment. They are (1) the accident did not occur, and (2) if it did, it happened on premises controlled by the Western Union and where the appellee had no right to be. Treating these questions as unabandoned and assuming appellant’s reference to them is intended as a contention that if its position on either is upheld then, and in that event, appellee’s disability did not arise out of his employment we have no difficulty in disposing, of them. As to the first, appellee’s testimony that he experienced a fall in the manner and form heretofore related was clear, positive and undisputed. With respect to the second, the record discloses ample evidence to justify the conclusion that at the time of the accident appellee was on duty and in a room used by appellant’s employees with its knowledge, acquiescence and consent. With the record in this state, under the well-established rule to which we shall later make reference, this court cannot say the trial court erred, either in its conclusion the accident occurred or that appellee was in a place where he had a right to be at the moment of its occurrence.
We turn now to consideration of the principal ground relied on by appellant as error. Abstractly stated, it is that appellee did not sustain the burden of establishing by substantial, competent evidence his injury arose out of his employment. Its position on this point is founded, and when analyzed its entire argument is based, upon the theory that on the date and at the moment in question appellee suffered a stroke of apoplexy caused by a cerebral hemorrhage or thrombosis and resulting in hemiplegia, which in the language of laymen simply means a paralysis of the muscles on one side of the body; that the fall from the chair and resulting injury was merely a coincidence and that appellee’s disability would have resulted irrespective of, and notwithstanding, its occurrence.
In our approach to consideration of appellant’s argument as well as the ultimate disposition of its contention it becomes immediately apparent an examination of the testimony of medical experts, to which we have heretofore purposely made no reference, is required. As we proceed with that examination, it should at the outset be stated, we will not attempt to detail all the evidence supporting appellant’s claim the appellee’s disability was not the . result of the accident, which as we have heretofore determined must for purposes of review be considered as having occurred. Under our decisions we have neither duty nor authority to weigh the evidence and are concerned only with such testimony as supports or tends to support the findings and judgment of the trial court. Our jurisdiction is specifically limited 'to questions of law (G. S. 1935, 44-556). Once that testimony has been ascertained our only function is to determine whether it is competent and substantial in character. If it is, the trial court’s decision that the injury is compensable must be upheld. It is not for us to speculate as to whether there was other evidence which might have warranted a contrary decision. This is true even though such evidence might lead us to a different conclusion if we were the triers of fact. That the principles just enunciated are well grounded in this jurisdiction and are no longer open to argument or debate is evidenced by a long line of uniform cases (see Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 362, 139 P. 2d 846, and earlier cases there cited). For more recent decisions of like effect, see Carrington v. British American Oil Producing Co., 157 Kan. 101, 105, 138 P. 2d 463; Goss v. McJunkin Flying Service, 157 Kan. 684, 143 P. 2d 659; Thompson v. Swenson Construction Co., 158 Kan. 49, 56, 145 P. 2d 166; Long v. Lozier-Broderick & Gordon, 158 Kan. 400, 402, 147 P. 2d 705; Murphy v. I. C. U. Const. Co., 158 Kan. 541, 542, 148 P. 2d 771; Woodfill v. Lozier-Broderick & Gordon, 158 Kan. 703, 705, 149 P. 2d 620; Hall v. Kornfeld-Haryer Well Servicing Co., 159 Kan. 70, 74, 151 P. 2d 688 and Stanley v. United Iron Works Co., 160 Kan. 243,160 P. 2d 708.
With applicable rules determined we now detail the medical experts’ testimony of record which supports or tends to support the trial court’s award.
In passing, we note that all witnesses hereinafter referred to were physicians and surgeons whose qualifications to testify as medical experts were admitted by the respective parties.
Dr. R. E. Padfield was the only expert witness who testified on behalf of the claimant appellee. During the course of his direct examination the following questions were asked and answers were made:
“Q. Doctor, did you attend James F. Burk on October 27, 1944? A. Yes, sir.
“Q. Do you know what was wrong with him at that time? A. Yes, he had a stroke of apoplexy, or hemorrhage of the brain, hemiplegia, he was paralyzed on one side.
“Q. Which side? A. The right side.
“Q. Doctor, the evidence in this case has disclosed that James F. Burk, on the early morning of October 27, was sitting in a chair which had casters under it. It was on a cement floor, or hard surface floor; that in shifting his weight in that chair, the chair slipped out from under him, rearwardly, and dropped him to the floor heavily. This man weighs approximately 210 pounds; that approximately forty-five minutes thereafter, he -began to feel a numbness in his right side and loss of coordination of his right hand; and that he went home with'that condition increasing. It was difficult for him to get upstairs, and you saw him at noon, with the entire right side of his body paralyzed? A. Yes.
“Q. From those facts, do you have an opinion as to whether or not the fall was the proximate and producing cause of his physical condition at the time you saw him? A. I do.
“Q. And what is that opinion? A. I think that was the exciting cause of his paralysis.
“Q. Just how do you deduce that opinion from those facts? A. Well, he had the fall and this developed later; you can say immediately following— and it apparently was coming on slowly, and he developed the paralysis. The paralysis is, as you probably know, and as I will state, is caused by some circulation or pressure in the brain, circulatory disturbance, or pressure in the brain, where the blood supply has been shut off by a clot or thrombosis or slow hemorrhage in the brain, and it was my opinion that that caused his condition as I found him.
“Q. That jar? A. Yes.
“Q. And hurt his brain in that respect? A. Yes.
“Q. Now, Doctor, do you have an opinion as to how long this condition will continue to exist? A. Yes, I do.
“Q. And what is that opinion? A. I don’t believe he will get well.
“Q. In other words, he is permanently and totally paralyzed on his right side? A. I think so.”
On cross-examination of this witness we find questions and answers as follows:
“Q. You say Mr. Burk had a brain apoplexy, you say he hád a hemorrhage? A. Yes.
“Q. A brain apoplexy, cerebral? A. Yes, he had a hemorrhage there that, in my opinion, caused this paralysis.
“Q. Hemorrhage or cerebral apoplexy? A. Yes, it could'be that. There are several different classifications of that, of course, but that is the general concensus of the opinion that it could be in the pons or ventricula or meninges, but it is classified as a cerebral hemorrhage. That was undoubtedly the cause of his paralysis.”
The following questions and answers appear as a part of the cross-examination of Dr. Carl Burkhead, an expert witness for the appellant:
“Q. We had a case once where a man was standing on a saw-horse sawing a cornice over his head, ■ and he dropped dead from a stroke of apoplexy. Now, the physicians testified that the increase in blood pressure due to his efforts caused the stroke. How does this case differ from that one? A. Well, that is one of the arguments that the other side has. I don’t think it does. That is the reason I quoted the literature. I don’t think that makes any difference, because a lot of these things happen at night when the blood pressure is lower.”
Some of the questions asked Dr. E. H. Terrill, a neutral examining physician who stated the appellee at the time of the trial was suffering from thrombosis and not a hemorrhage, and the answers made thereto by him are:
“Q. Doctor, is it probable that the accident activated an existing condition, which may have caused or had something to do with his present disability? A. Well, yes, but when, as I say, when we consider the nature of the processes that occur there, it doesn’t seem reasonable to me to expect that a thing like that would do it. There isn’t anything that would occur under those circumstances that I can see that would lead to any substantial change there.
“Q. Either by way of direct cause or aggravation? A. No, I don’t believe so.
“Q. Now, on the other hand, if it was a hemorrhage, would that have anything to do with it? A. If he got a high enough rise in pressure, yes, but I think it happened too quickly to be from that sort of cause.”
Appellant contends the evidence which we have just related is vague, conjectural and unsatisfactory. We cannot agree. Reference to it immediately discloses that so far as Doctor Padfield is concerned it is clear, definite and substantial. It further reveals there is no unanimity of opinion among medical experts on the subject. True enough, awards cannot be based upon evidence which is purely conjectural and speculative, but there is no room for application of that rule where, as here, it can be said the-award is fairly based upon evidence which if believed is clear and convincing. Appellant insists the medical testimony overwhelmingly supports its position. Perhaps so, in number of witnesses, but that is not the test. Boiled down the gist of its contention is that this court should weigh the evidence. The answer to its argument is well stated in the early case of Bortnick v. Cudahy Packing Co., 119 Kan. 864, 866, 241 Pac. 442, wherein this court said:
“. . . Counsel for appellant admit their familiarity with the appellate practice in this court, that a court of appellate review is not a fact-finding tribunal; but they assume that we can go far enough into the' evidence to determine where its ‘great preponderance’ lies, and they argue that where the preponderance of the evidence is very great, as they assume it to be in this ease, in favor of appellant, this court should disregard the facts ascertained by the-trial court and enter judgment on the facts as we ascertain them to be. That cannot be done. (Agricultural Ins. Co. v. Aetna Ins. Co., 119 Kan. 452, 457-461, 239 Pac. 974).” (p. 866.)
Besides this court has, since the date of the rendition of the decision from which we have just quoted, repeatedly held the determination of whether an award is supported by substantial evidence depends not upon the preponderance of the evidence or the greater number of witnesses but .upon that evidence which, if competent and substantial, the trial court sees fit to believe (Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496 and Woodfill v. Lozier-Broderick & Gordon, supra, and Hall v. Kornfeld-Harper Well Servicing Co., supra).
In conclusion we note a final contention that we should not lose sight of the fact the workmen’s compensation commissioner’s examiner had the opportunity to observe the- witnesses, appraise their qualifications and credibility and determine the weight to be'given their evidence, while the district court did not have that opportunity, but based its decision upon the bare record. We need not debate that issue. By legislative sanction (G. S. 1935, 44-556) the district court has “jurisdiction to grant or refuse compensation, or to increase or diminish any award of the commission as justice may require.” Included in that grant is the right to weigh the evidence in compensation cases. Until that power is taken from the trial court by the source from which it sprang contentions of such character are of no avail.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
While framed in mandamus, the purpose of this action is to determine under what statute the board of county commissioners is authorized to sell real estate acquired under a judicial sale in tax foreclosure actions. The facts are stipulated and those pertinent may be summarized as follows: In accord with G. S. 1935, 79-2302, 79-2303, 79-2304 and 79-2306, and amendments thereto, two described lots of real estate (a), (b), in the city of Pitts-burg, were sold September 5, 1933, for the taxes of 1932 and bid off in the name of the county; that the real estate having remained unredeemed from such sale, the board of county commissioners, in September, 1941, ordered the county attorney to institute a suit in the district court of Crawford county to enforce the tax liens against the real estate above mentioned, and other tracts, as provided by G. S. 1941 Supp. 79-2801 to 79-2805; that the suit was duly brought; that the court found the amount of the lien of taxes and other legal items to be $396.81 on lot (a) and $333.85 on lot (b) and decreed that the liens be foreclosed and the real estate be sold by the sheriff under an order of sale issued by the clerk; that the sale was had October 5, 1942; that the board of county commissioners instructed the sheriff in the event the highest bid on each tract of real estate did not equal the full amount of the liens thereon the sheriff should bid in the real estate in the name of the county; that the sheriff did bid in the real estate, lots (a) and Jb) in accordance with such instructions ; that thereafter the sale was confirmed and sheriff’s deeds issued to the county for the lots in question and duly recorded, and that the suit was fully completed and the proceeds of the sale were properly distributed. -
It was further stipulated that on May 11, 1945, the board of county commissioners reduced the price of each of the tracts above mentioned to $10 each, which amount in the judgment of the board was the market value of each of the tracts, and concluded to sell the tracts for the sum of $10 each; that on May 14, 1945, one Nick Simion made a written offer to the board of county commissioners to purchase each of the tracts for the sum of $10 and tendered to the board the amount of the purchase price therefor. In the motion for the writ it was alleged that the board of county commissioners refused to accept the sum of $10 for each of the tracts tendered by Simion, although regarding that sum as the fair market value of the property, giving as a reason therefor the enactment of House bill No. 340 of the 1945 session of the legislature, and particularly section 7 of the bill (Laws 1945, ch. 362, § 7), hereinafter referred to as House bill No. 340, which became effective April 1, 1945. The prayer is for a writ requiring defendants to accept the tender and execute a deed to Simion for each of the tracts.
At the time of the judicial sale of'the real property here involved in 1942 the section of the statute then in force, giving authority for the board of county commissioners to sell the property bid off by the sheriff for the county at such a sale, is found in section 26 of chapter 375 of the Laws of 1941 (G. S. 1941 Supp. 79-2804Í, amended by § 5, ch. 302, Laws 1943, by adding a sentence not here important), and as it pertains to the authority to sell at a reduced price reads as follows :
“. . . If, at the end of six months from and after the acquiring of title by the county to any of said real estate, any of said real estate remains unsold, the board of county commissioners may reduce the price therefor to a sum that, in their judgment, would be the market value thereof, and sell the same at said reduced price. . . .”
This section was amended by the 1945 legislature by House bill No. 340, section 7, the pertinent portion of which reads:
“. . . If at the end of six months from and after the acquiring of title by the county to any of said real estate, any of said real estate remains unsold, the board of county commissioners may reduce the price therefor and sell the same after first advertising the same once each week for three consecutive weeks in said county describing said real estate giving the location thereof and requesting sealed bids therefor on or before a specified date and said board shall accept the highest cash bid received. If no bid be received such board may sell the same for such sum that, in their judgment would be the market value thereof: Provided', however, The board of county commissioners, at any time after the end of six months from and after the acquiring of title and after advertising such real estate at least three times in the official county paper and such other papers as the board shall direct, describing the same, giving the general location thereof, and the time and place of sale, may sell such real estate at public auction for cash in hand to the highest bidder therefor. . . .”
In section 11 of House bill No. 340, G. S'. 1941 Supp. 79-2804Í, as amended in 1943, was specifically repealed without any saving clause. House bill No. 340 contained a section (10) which reads:
“All tax foreclosure actions begun prior to the effective date of this act shall be completed in conformity with the laws in effect prior to the effective date of this act: Provided, That if in the opinion of the court the application of the provisions of this act would be feasible and would not work injustice the court may in its discretion order the completion of such proceedings in conformity with this act.”
Counsel for plaintiff argue that since the real estate in question was acquired by the county in 1942 the statute then in effect (G. S. 1941 Supp. 79-2804f) granting authority to the board of county commissioners to sell such property should be followed notwithstanding the enactment in 1945 of House bill No. 340. This position cannot be sustained for two reasons: G. S. 1941 Supp. 79-2804f was repealed by House bill No. 340, effective April 1, 1945, and was not in force in May, 1945, when the county reduced its price and Mr. Simion offered to buy. Second, the authority of the county to sell the property in question is a statutory authority. (See Felker v. Elk County, 70 Kan. 96, 78 Pac. 167; State, ex rel., v. Mowry, 119 Kan. 74, 237 Pac. 1032; and State, ex rel., v. Wyandotte County Comm’rs, 154 Kan. 222, 117 P. 2d 591, and authorities cited therein.) The county has no vested interest in the manner of disposing of the property which the legislature could not change. In May, 1945, House bill No. 340 was in full force and effect and section 7 of that act provided the only method by which the county could sell the property in question. It is stipulated there had been no advertising of the property, as required by that section. Mandamus will not lie to require the board of county commissioners to do something which they are not authorized to do under the law.
Counsel argue the effect upon the question here for decision of section 10 of House bill No. 340. We think it clear that this section applies only to cases which had been brought before the effective date of blouse bill No. 340 and which were pending and not-finally disposed of at that time. Several sections of House bill No. 340 amended prior sections of the statute pertaining to what should be in the petition in such a foreclosure action, items of cost that might be considered, the distribution of funds, and other matters, which in the discretion of the trial court considering a pending case might or might not be held to apply as justice required; hence, the section has an important place in the bill. But where a foreclosure action had been fully closed before the new statute went into effect it would be practically impossible to open up a closed case so that the procedural matters referred to could be used. We are of the opinion, therefore, that it has no effect upon the question before us.
It necessarily follows that the writ prayed for cannot be granted. Writ denied. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action for divorce. The trial court granted the plaintiff a divorce, custody of a minor child, possession of certain personal property, alimony and attorney’s fees. The defendant has appealed. '
The amended petition alleged that in 1925 the plaintiff and defendant agreed to become wife and husband and since that time had cohabited together as such; that plaintiff had assumed the name of the defendant and defendant had held plaintiff out to the public as his wife and by reason thereof plaintiff and defendant were wife and husband. The petition then made allegations about the child, aged seventeen, and that plaintiff was the proper person to have the custody of her; that the plaintiff had always conducted herself as a faithful and dutiful wife and that the defendant had been guilty of extreme cruelty and gross neglect of duty. The petition then alleged the ownership in defendant of certain property; that plaintiff had no means with which to support herself or to carry on this action and that defendant was an able-bodied man w'ho earned at least thirty dollars a week; that defendant had told plaintiff if she ever caused him any trouble he would kill her and that plaintiff feared he would carry these threats into execution unless he was restrained. The prayer was that plaintiff be given a divorce from defendant; that she be awarded the custody of the minor child; that the personal property in her possession be awarded to her and that she be allowed a reasonable sum out- of the earnings and property of the defendant for alimony, court costs and attorney’s fees and that upon a final hearing the court make an equitable disposition of the property.
The defendant in his answer denied each and every allegation of the petition except those admitted and especially denied that he and the plaintiff were married either by common law or by civil ceremony. The answer denied that plaintiff and defendant agreed in the year 1925 or any other time to become husband and wife or that he held plaintiff out as his wife and denied that plaintiff and defendant cohabited together as husband and wife. The answer admitted that plaintiff and defendant had acquired a relationship of sweethearts for the past nineteen years and that during that time the child referred to in the petition was born to plaintiff; that upon the birth of the child the plaintiff assumed his name and gave his name to the child all without his consent or approval. The answer further pleaded that during the time that plaintiff and defendant were keeping company plaintiff associated, and had affairs, with other men besides defendant. The answer further admitted that defendant .did visit the plaintiff at various addresses and residences set out but never cohabited with her at her home.
To this answer the plaintiff filed a reply in the way of a general denial. After hearing the evidence and arguments of attorneys the court found that the allegations of the plaintiff’s petition were true; that the relationship existing between plaintiff and defendant constituted a common-law marriage.
Judgment was rendered allowing plaintiff a divorce, custody of the child and $1,000 as permanent alimony, $500 to be paid in cash and the balance ait the rate of $50 a month; $100 attorney’s'fees and the costs of the action.
Defendant was given cash in the amount of $771.80 then in his possession and the real estate referred to. Defendant’s motion for a new trial was denied. Hence this appeal.
The only point raised on this appeal is that no common-law marriage was proven between the plaintiff and defendant and hence the trial court was without authority to enter a decree of divorce or judgment for alimony. Defendant’s position is that certain elements must be proven in order to constitute common-law marriage, that is, the members must have the capacity to contract, there must be a holding out of each other as husband and wife, there must be living together as husband and wife, there must be a present intention to do these things. He argues that plaintiff failed to prove any of these elements and that his demurrer to the evidence should have been sustained. This requires an examination of the record because if there is any substantial evidence to sustain the ruling of the trial court it will not be disturbed on appeal. (See Solomon v. Lampl, 135 Kan. 469, 11 P. 2d 1028, and Gilpin v. Burch, 145 Kan. 224, 65 P. 2d 308.)
Defendant argues first there was no substantial evidence of any agreement between the parties to become husband and wife immediately. The plaintiff testified that she and defendant met in 1923 and some months after that they began to have sexual relations and defendant asked her to marry him and she said she would; that they were not married then but in May, 1925, she was about to give birth to a child of which defendant was the father, and she asked him to go ahead with the marriage he had proposed, and his answer was “That is just the law of the land. You don’t need no papers. We are married now in the eyes of God.” She testified further that from that time on until 1942, just before this action was filed, she and defendant regarded each other as man and wife; that he introduced her to all his friends as his wife; that he introduced her to the landlady, with whom she was living at the time of the trial, as his wife; that at the time she was confined on account of the birth of the child defendant gave her some subsistence for about five months; that on another occasion he lived with her in the same house for about three months and at all other times lived in the immediate vicinity of the house where plaintiff lived; that she took the name “Cain” and defendant did not object to her using it. She further testified that defendant came to see her every day and every night at the house where plaintiff lived with her daughter; that defendant always said he was buying “this place” for. her and her daughter and wanted them to enjoy what he had; that defendant “used to” give her five dollars a week for support of the child; there was evidence that the daughter called defendant “Daddy” on numerous occasions, and he did not object.
This state has recognized what is known as “common-law” marriage almost from the beginning. See State v. Walker, 36 Kan. 297, 13 Pac. 279. In that case we said:
“No particular ceremony or form of solemnization is prescribed or required. The settled doctrine of the law to be applied in a case where the validity of a marriage is drawn in question is, that in the absence of all civil or statutory regulations, the mutual present assent to immediate marriage by persons capable of assuming that relation, is sufficient without any formal solemnization. Such a contract constitutes a marriage at common law, and its validity will be sustained, unless some statute expressly declares it to be void.” (p. 303.)
In Matney v. Linn, 59 Kan. 613, 54 Pac. 668, a couple had been divorced and had lived apart until the decree had become final; there was a reconciliation and both parties appeared in court and caused the court to make an order setting the decree aside, after which they lived together as man and wife. Afterward their marital status was questioned. This court regarded the attempt to set aside the divorce decree as a nullity, but said:
“The fact that this step was ineffectual, and the further one that there was no formal marriage at that time, does not argue that they did not again enter the marriage relation. It appears that there was at that time a mutual present assent of the parties to immediate marriage. They were capable of assuming that relation, and in pursuance of that consent and agreement, they lived together as husband and wife, in good faith, until they were separated by death. These things were sufficient to constitute a valid consensual marriage.” (p. 618.)
In Tyner v. Schoonover, 79 Kan. 573, 100 Pac. 478, we said:
“Consensual or common-law marriages are not void although the formalities of the statute have not been observed, and these may be shown by ac knowledgment, cohabitation and repute, and must necessarily be shown by other than record evidence.” (p. 575.)
The requisites for a common-law marriage are present capacity of the parties, a contract to assume the marriage status at the time the contract was made and a holding of each other out to the public as husband and wife. It is not necessary that the contract be in any particular form. In Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 534, we said:
“If a marriage contract need not be evidenced by writing, and of course it need not be, we can conceive of no reason why it may not, like many other civil contracts, be evidenced by acts and conduct from which its making ore terms may be presumed.” (p. 280.)
There is no question here but that both parties had the capacity to contract and we are considering a demurrer to the evidence. The plaintiff on finding herself pregnant asked defendant to carry out the proposal of marriage he had made to her sometime before. She was told by him that they were married in the eyes of God. From then on they held each other out to the public as husband and wife. The trial court was warranted in drawing the inference from these circumstances among others that there was a present contract between these parties to assume the marriage relationship and that it was carried out.
Defendant points out that the parties did not live in the same house at all times and that plaintiff retained her maiden name at the packing plant where she worked and on' one or two other occasions around the town. These are all circumstances that went to the weight to be given plaintiff’s testimony by the trial court. We cannot weigh testimony here. See Cooper v. Cooper, 147 Kan. 256, 76 P. 2d 867.
Defendant also cites and relies on what this court said in Pitney v. Pitney, 151 Kan. 848, 101 P. 2d 933. In that case we held that the findings of the trial court and the testimony of the plaintiff established that the parties had lived in the same house as man and wife but that throughout the relationship the man had promised to have a marriage ceremony performed in the future. There was no present contract. There was a further failure of proof in that record of any holding of each other out to the public as husband and wife. Hei'e there was evidence of an agreement to assume the marriage relationship at once. There was also evidence of a holding out.
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The opinion of the court was delivered by
Hoch, J.:
We are asked to pass upon the validity of an order by the Board of Managers of the Kansas Soldiers’ Home discharging certain members of the home. Upon appeal to the district court by certain persons so discharged the trial court found against the board, and the board appeals.
In view of the conclusion presently to be stated it is only necessary to summarize the pertinent facts. By resolution, dated July 27, 1944, and signed “Bert A. Hedges, Secretaiy of the Board of Managers” and “Attest: G. E. Gard, President of the Board of Managers” the acting • commander was directed to notify certain members and their- wives that they were being “discharged from membership in the Kansas Soldiers’ Home, by reason of changes in their financial and/or physical condition as provided under the statutes,. 76-1908” such discharge to take effect as of August 1, 1944, but with regular subsistence allowances for the month of August and the privilege of remaining in the home during September and October without payment of rent. It is stated that this resolution was passed after two hearings, with due notice to interested parties, but we are not here determining any facts in that regard. Formal notice of discharge signed by Nolen E. Bond, acting commander and dated August 7, 1944, appears to have been sent to those affected by the order. Recital in the noticés indicates that those affected were veterans with wives but with no other dependents and who had monthly incomes of $75 or more. From this action by the board a number of the members affected took appeals to the district court. The board moved to dismiss the appeals on the ground that the court was without jurisdiction to hear them. The motion was denied and trial before the court, without a jury, proceeded, the court having first ruled that the burden of proof rested upon the board. After receiving evidence and hearing argument of counsel the court made certain findings of fact contrary to the board’s findings and also found that the board had abused its discretion. Appeals to this court, by the board, in six separate actions followed. These appeals, all involving the same issues, were here consolidated.
The appellant board’s principal contentions are that the appeals to the district court should have been dismissed for the reason that they were filed too late; that the court erred in placing the burden of proof upon the board; that the demurrer to the evidence of appellees should have been sustained, and that the court’s finding that the board had abused its discretion is unsupported by the record.
Before considering these contentions we are faced with the question of whether an appeal lies to the district court from an order of the board. Do the pertinent statutes contemplate appellate review of the acts of the board, or does the remedy lie solely in proceedings in injupction, mandamus or quo warranto in case the board acts capriciously or arbitrarily, refuses to discharge the duties imposed upon it by law or exceeds its authority? If appellate review of the board’s acts is not provided for then the district court had no jurisdiction to entertain the appeals and the motion to dismiss should have been sustained.
At the times here involved the statutes relating to the establishment, maintenance and management of the home were to be found in'G. S. 1935, 74-2301 to 74-2304, and 76-1901 to 76-1926 as modified by certain amendments shown in G. S. 1943 Supplement, including 76-1904 to 76-1935. Certain additional amendments which were subsequently made appear in Laws of 1945, chapter 344, but are not here material and need not be specifically noted.
It is not necessary to set out in full the statutory provisions relating to admission to the home. It will suffice to say that subject to certain other conditions or qualifications not necessary to note here any honorably discharged soldiers, sailors or marines were eligible to admission “who served in the army or navy of the United States during the War of the Rebellion, War with Spain, Philippine Insurrection, Boxer Uprising or World War, and who were honorably discharged, who may be disabled by disease, wounds, old age, or otherwise disabled, and who have no adequate means of support, and who, by reason of such disability are incapacitated from earning their living, and who would otherwise be dependent upon public or private charity, together with such members of their families as are dependent upon them for support, shall be entitled to admission to such institution, subject to the rules and regulations that may be established by the board of managers for the management and government thereof, and upon the approval of their application by the said board of managers.” (G. S. 1935, 76-1908. This section was amended by Laws of 1945, chapter 344, to make veterans of World War II also eligible to admission.)
As to discharge of members, G. S. 1935, 76-1908, provided: “Provided further, That the board of managers shall have authority by resolution to discharge any inmate from' said home on a showing that said inmate has gained admittance into home by misrepresentation of his or her financial or physical condition, or a showing that the financial or physical condition of such inmate has been so altered since his or her admittance as not to justify the further maintenance of said inmate in said home. No such inmate shall be discharged without notice and opportunity to be heard by said board.” This provision was unchanged by the 1945 enactment except to change the word “inmate” to the word “member.”
The board has full control of “said institution, the property, effects and management thereof” (both under G. S. 1935, 76-1904, as it then existed and as amended in other particulars in 1943 Supp. and by Laws 1945, ch. 344, sec. 1) and is clothed with broad powers to make rules and regulations with reference to the management and government of the home, discipline, etc. (G. S. 1935, 76-1908 as amended by Laws 1945, ch. 344). In the recent case of Johnson v. Hensley, 150 Kan. 96, 90 P. 2d 1088, the power of the board to make rules and regulations was fully considered and broadly construed. Syllabus ¶ 1 of the opinion in that case reads:
“The rule making power of the board of managers of the Kansas soldiers’ home does not include merely the establishment of reasonable rules and regulations for the management and government of the home, but extends also to the subject of the admission of applicants to the home.”
There is no specific provision in the statutes for appeal to the district court from any orders or other determinations by the board. Right of appeal, if any exists, must be found in the gen eral provision of the code of civil procedure (G. S. 1935, 60-3301) with reference to the appellate jurisdiction of district courts. That provision reads:
“A judgment rendered or final order made by a probate court, a justice of the peace or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court.” (Italics^supplied.)
The question then is whether in taking the actions complained of the board was exercising judicial functions imposed upon it by law.
First, it must be remembered that membership in the home is a privilege extended by the state to certain persons, and upon certain conditions. The right of admission and of continuing membership is wholly statutory. Every applicant for membership necessarily submits himself to the conditions imposed by the statute and in his written application agrees that he will “abide by the rules and regulations .... which shall have been or may hereafter be established by the lawfully constituted authorities.” This, of course, does not mean that a member has no recourse against invalid rules and regulations, or unlawful acts of the board.
In the light of our many decisions involving other statutory boards we have no hesitancy in saying that the instant board is an administrative and not a judicial body, and that in the absence of specific statutory provision therefor its acts are not subject to appellate review. Brief review of some of our decisions will indicate the uniformity of our holding on this-question.
In Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, which has been repeatedly cited with approval, this court gave consideration to the question of whether the functions of the state board of medical registration and examination are administrative or judicial. It is clothed with broad powers in prescribing qualifications for practicing medicine in this state and in granting and revoking licenses. It was held that the board is not a judicial tribunal. It was there said:
“While it may be said to act gwasi-judicially, it is only a ministerial board and performs no judicial functions. It is classed with such boards as the county boards of equalization, boards for the examination of applicants for teachers’ certificates, city councils in granting and refusing a business or occupation license, and numerous other boards of similar character. Such boards perform no judicial functions, are not judicial tribunals, and have never been classed as such.” (Citing many cases, p. 715.) (See, also, as to the character of the medical board, Brinkley v. Hassig, 130 Kan. 874, 879, 289 Pac. 64.)
Among other cases in which the Meffert case has been cited is Allen v. Burrow, 69 Kan. 812, 77 Pac. 555, which involved the tribunal created, under the Australian ballot law for the settlement of disputes regarding nominatiqns for public office. It was there said that the rule is well settled that in the absence of proof of bad faith or of arbitrary and capricious action “courts will not interfere with public officers in the discharge of any duty involving the exercise of judgment or discretion,” and it was suggested that in cases of bad faith or of arbitrary and capricious conduct the remedy is in mandamus or injunction; and that “It has often been said of special tribunals established by statute to pass on matters expressly committed to them that their jurisdiction is exclusive and their déterminations final” where their actions are characterized by good faith and are “free from fraud, corruption, and oppression.”
In State, ex rel., v. Mohler, 98 Kan. 465, 158 Pac. 408, the constitutionality of the act requiring certain commission merchants to secure a license issued by the secretary of the state board of agriculture was considered, and it was held:
“The powers of granting and withholding or revoking licenses to commission merchants, or supervising their dealings with their consignors, or examining their solvency, and of exacting from them bonds to insure their faithful accounting and payment for goods consigned to, them are. administrative and not judicial.” (Syl. if 3.)
In the case of In re Chicago, R. I. & P. Rly. Co., 140 Kan. 465, 37 P. 2d 12, the railway company sought by “appeal” to the district court to secure a review of certain findings of the state tax commission as to alleged excessive and protested taxes. The judgment of the trial court dismissing the “appeal” for want of jurisdiction was affirmed. In the opinion it was said:
“Apart from the general appellate jurisdiction of the district court over all inferior tribunals exercising judicial powers conferred by the civil code . . . . that court has no inherent appellate jurisdiction over the official acts of public boards or public officers. Where the latter do not transcend their statutory powers nor act fraudulently or oppressively their official acts cannot be challenged in court except where the legislature has made some special provision for a judicial review. (State, ex rel, v. Mohler, 98 Kan. 465, 158 Pac. 408, syl. ¶ 9.) .... Of course the courts are always open to hear meritorious complaints against illegal or oppressive acts or delicts of nonjudicial public boards and officials, either at the instance of the state or of a private citizen especially aggrieved thereby. But not by appeal — where no statute confers a right of appeal. In the absence of a statutory right of appeal, judicial redress for illegal, fraudulent or oppressive official conduct must be invoked through some extraordinary legal remedy recognized in our practice' — injunction, mandamus or quo warranto. (State, ex rel., v. Mohler, supra, 471, 472.)” (pp. 467, 468.)
This question was again considered in Union Pac. Rld. Co. v. State Tax Comm., 145 Kan. 715, 68 P. 2d 1, in the light of a special statute relating to appeals. Our income tax law at that time provided — as it does now — for appeals to the district court from certain findings by the state tax commission (G. S. 1935, 79-3227). In 1943 this appeal statute was broadened to include findings or orders under certain other tax laws. See G. S. 1943 Supp., 74-2426. The provision for appeal provided — as it does now> — that “such an appeal shall be heard as an equity proceeding, and shall proceed as an original action.” The right' and the scope of appellate review under such a statute was considered and the principles heretofore stated again emphasized. In the opinion it was said:
“It clearly appears that an administrative duty is cast upon the commission, and that it is a duty to be performed by it and not by the court. As was said in. Kansas Gas & Electric Co. v. Public Service Comm,., 122 Kan. 462, 261 Pac. 1097: 'Time and again this court, in consonance with the prevailing attitude of courts throughout the country, has declared that it will not substitute its judgment for that of some administrative tribunal created by legislative authority for dealing with matters of nonjudicial character.’ (p. 468.) (See, also, Bank v. Geary County, 102 Kan. 334, 170 Pac. 33; Wichita Gas Co. v. Public Service Comm., 132 Kan. 459, 295 Pac. 668; Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985; Murphy v. Hobbs, 139 Kan. 799 33 P. 2d 135, and the discussion herein with respect to the right of appeal.) The function of the trial court was to see that the action of the commission was not fraudulent, unreasonable, arbitrary, oppressive or discriminatory, and not to substitute its judgment for that of the commission.” (p. 726.)
We find nothing in the statutes relating to the management of the. Kansas soldiers’ home which would make inapplicable the principles stated in the Kansas cases cited and in others which might be cited, all of which are in line with the authorities generally. (2 Am. Jur. 858, § 19; 4 C. J. S. 130, § 47.) The board is clearly administrative and not judicial in character.
This question of right of appellate review is not discussed in the brief of the appellees but appellants state that in attempting to take an appeal to the district court the appellees apparently sought to follow the recent case of Bohl v. Teall, 157 Kan. 239, 139 P. 2d 418. Clearly that case, which involved an order of the state board of dental examiners revoking a dentist’s license to practice his profession, does not support their contention. The statute there involved specifically provided for appeal to the district court. (G. S. 1941 Supp., 65-1418. Changes since made in the statute need not be noted.) The aggrieved dentist took an appeal under the statute and then secured in the district court a temporary injunction restraining the dental board from enforcing its order pending determination of the appeal. This court set aside the temporary injunction on the ground that an adequate remedy at law had been provided and that “the plaintiff’s grievance, if established as alleged, can only be redressed as the statute provides — by appeal.” There being no appeal statute in the instant case the reason there given for denying relief through equitable action does not, of course, apply.
It follows from what has been said that the district court was without jurisdiction to entertain an appeal from the action of the board. This conclusion makes it unnecessary to consider other questions presented.
In each of the appeals here consolidated the judgment of the district court is set aside and the cause remanded with directions to dismiss the attempted appeal from the orders of the board. | [
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The opinion of the court was delivered by
Thiele, J.:
The question presented by the specification of error in appellant’s abstract is whether the trial court erred in denying plaintiff’s motion for a continuance. Appellees question appellant’s right to be heard.
From the abstract and counter-abstract, it appears trial of the action had been set for July 12, 1944, and shortly before that date plaintiff had filed a motion for a continuance. We are not presently concerned with whether it fully complied with lawful requirements. On July 12,1944, the action came on for trial and plaintiff presented its motion, and after hearing it, the trial court found it should be denied. Plaintiff then announced it had no evidence to offer, and upon motion of certain defendants, appellees here, judgment was rendered in their favor. No motion for a new trial was filed. On September 8, 1944, the plaintiff appealed from the ruling on its motion for continuance and from judgments, orders and decrees adverse to it.
The code of civil procedure, prior to its revision in 1909, provided for an appeal from an order granting or refusing a continuance. (See G.S. 1901, § 5019 [2] or G. S. 1905, § 5467 [2].) In the revision of 1909 the provision for appeal from such an order was omit ted. (See G. S. 1909, § 6160, G. S. 1935, 60-3302.) It was held in Ward v. Sales Co., 98 Kan. 24, 157 Pac. 406, that under the section as amended an appeal could not be taken from an order granting a continuance; and that it might be error to grant or refuse a continuance, but the error must wait until an appealable order is made. The rule of the above case was reiterated and approved in Mallory v. Johnstone, 112 Kan. 566, 212 Pac. 117.
It will be noted that in the instant case there was a judgment rendered, and that the appeal is not only from the ruling, of which complaint is made, but from the judgment, but that no error is specified with respect to anything but the ruling. It could be said that appellant had abandoned all else but the ruling, and that it not being appealable, we have nothing before us. Because appeal was taken from the judgment, we prefer to treat the matter in the following manner.
When the action came on for trial plaintiff offered his motion for continuance, and it was denied. If there was any error in the ruling, it was a trial error and not subject to review in the absence of a motion for a new trial. There was no motion, and the matter is not open for appellate review. See the recent case of Columbia Casualty Co. v. Sodini, 159 Kan. 478, 156 P. 2d 524, and cases cited.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for divorce in which a decree of divorce was granted to plaintiff, and defendant has appealed. ■ Appellant does not question the part of the decree granting the divorce, but complains of the judgment for alimony in favor of the plaintiff. Plaintiff is the daughter of a well-known physician in Topeka. She is a graduate in home economics and dietetics of Kansas State College and had a year of postgraduate work in the Woman’s Educational and Industrial Union in Boston. Defendant is a graduate of Northwestern University with a degree in commerce from the School of Business. The parties became acquainted in July, 1941, and were married March 14, 1942. At the time of their marriage plaintiff was employed as a dietitian at the N. Y. A. school in Arkansas City and was receiving a salary of $90 to $100 per month plus her board and room. The defendant was doing clerical work in the New Era Mill in Arkansas City at a salary of $114 per month and was taking a pilot’s training course at Ponca City, Olcla., in order to qualify as a civilian instructor. His father was employed at the mill where he worked and owned some shares of stock of the milling company., most of which was owned by a Mrs. Hunt and her family. Following their marriage they went to San Antonio, Texas, where defendant was to finish training as a civilian flight instructor. He completed his course of training there in September, 1942, and the couple came to Topeka, where defendant was employed as a flight instructor at Washburn College, which work continued until July 1, 1944. His earnings there varied, but averaged about $260 per month.
When they were married plaintiff owned a 1939 Nash automobile which she had purchased by turning in a Ford car at $150 and agreeing to pay $583 in monthly payments, five of which aggregating $242.87, she had paid prior to the marriage. There was a balance due upon the automobile of about $340. She had no other property. At the time of the marriage defendant had between $400 and -$500 in money and a Ford car, which he soon sold for $620. During the nearly six months he was in training at San Antonio the mill where he had worked and his father sent him $100 per month. While they were in San Antonio a man boarded and roomed with them, for a time, but the financial arrangements with respect to that are not disclosed. When they came to Topeka in September, 1942, defendant had paid the balance due on plaintiff’s automobile and they had about $160. They rented a furnished apartment, for which they paid $65 per month. In October, 1942, they traded the 1939 Nash automobile for a new Nash 1942 model, the price of which was $1,177, on which they were allowed $425 for the 1939 Nash. The balance due on the new car was paid by defendant. From February 15 to August 1, 1943, plaintiff worked at the Santa Fe offices at a salary which began at $88 per month and was increased to $115, out of which she purchased three United States bonds of a total maturity value of $75. At Christmas, 1942, Mrs. Hunt gave defendant a United States bond of a maturity value of $50. Defendant was carrying a $2,000 life insurance policy, the cash surrender value of which, if any, was not shown. In August, 1943, plaintiff had a major operation performed at the hospital in which her father assisted the surgeon and who, because of a comity between physicians, made no charge for his services. Plaintiff’s father paid the hospital bill. Early in 1944 defendant had an operation for hernia,' and again plaintiff’s father assisted the surgeon, who made no charge. This operation incapacitated defendant for work for perhaps three months.
On June 13, 1944, because of the differences between the parties, plaintiff left the apartment where they lived and went home, taking with her the keys for the automobile, which she stored. Their bank account at that time was $86.24. The parties had acquired no furniture. At the time of their marriage they had been given wedding presents by their respective relatives and friends of an aggregate value of not to exceed $500.
On July 7, 1944, plaintiff brought this action for divorce on the grounds of extreme cruelty and gross neglect of duty, and also asked for the restoration of her maiden name, for temporary and permanent alimony, suit money, and attorneys’ fees.
On August 4, 1944, defendant filed an answer which contained a general denial, with an admission of the marriage of the parties, the residence of the plaintiff, and that no child had been born to the union, all as alleged in the petition.
On the same day plaintiff filed a motion that an emergency be declared and that the action be heard before the expiration of sixty days after the filing of the petition (as authorized by G. S. 1935, 60-1517). This motion was heard promptly. It was supported by the testimony of plaintiff’s father and another witness to the effect that there was grave danger of a physical and nervous breakdown of plaintiff unless there was an immediate trial of the. divorce action so that she would be relieved of the mental and physical strain existing under the circumstances. The motion was sustained and the trial proceeded the same day.
After hearing the evidence and the argument of counsel the court announced its decision by which it granted plaintiff a divorce upon the sole ground of gross neglect of duty, restored plaintiff to her maiden name of Margery Berle Morris, awarded to plaintiff the Nash, 1942, automobile, and directed defendant to deliver to plaintiff a bill of sale for the automobile and all gas coupons for its use; told the parties to divide the wedding presents, the plaintiff to have those given by her friends, the defendant to have those given by his .friends; decreed that each party should retain the United States bonds then in the possession of each, and that the defendant retain his life insurance policy and bank account, then $57.13; and further awarded plaintiff a judgment for alimony against defendant for the sum of $2,500, to be paid through the office of the clerk of the district court at the rate of $50 per month until the full sum was paid; and further rendered judgment in favor of plaintiff and against de fendant for the costs of the action, including an attorney's fee in the sum of $250, for which execution was to issue. Defendant filed a motion for a new trial, specifically directed to the alimony award of $2,500 to be paid in installments and to the judgment for an attorney’s fee of $250, upon which execution was to issue. This motion was argued and overruled, and defendant appealed.
In this court appellant complains only of the $2,500 alimony award, contending it was grossly excessive, if indeed any sum should have been awarded for that item, and of the judgment of $250 for plaintiff’s attorney’s fee, contending it was grossly excessive. Since defendant, as appellant here, does not complain of the fact that a decree of divorce was granted to plaintiff, his counsel did not abstract the evidence relating thereto. Counsel for plaintiff has brought that evidence before the court by a counter abstract, perhaps for the reason that he thought it would be helpful to the court in passing upon the questions raised here by appellant, and we shall so consider it. Plaintiff testified to their marriage, where they lived and what they did substantially as hereinbefore stated; that they kept a joint bank account in which was deposited his earnings and hers; that she .“kept the check stubs.” She testified that she knew defendant had no property, except that above enumerated, and that he had no income other than his salary. There is no suggestion in her testimony that defendant was either reckless or extravagant in the use of their money, which appears to have been used for their living expenses and the purchase of automobiles. She further testified that at the time of her operation in 1943 she was advised by. her physician that.if she ever wanted a family she should not put it off long. She told defendant about that and asked what he thought about it. He said he didn’t feel it was the time to have a family and asked her opinion. She said she thought it was not the most ideal time, but if it was a matter of having a family now or never she thought they should, if they ever wanted children, which she did. She thought they were not living a normal married life and worried about it. There were several occasions when he came, home from his work an hour or two later than she had expected him, and'on a few occasions when he was not busy with work on Saturday afternoons he went down town for several hours instead of staying at the apartment and visiting with her; and on one occasion when she expected him to treat her with affection he did not do so, and when she mentioned the matter to him he said it meant nothing to him. She spoke of this latter incident as a matter which might seem trivial, but which to her was real. We can see how it might tend to evidence a growing estrangement. She spoke of some other incidents, not clearly described in the testimony and which we shall not-attempt to detail. She talked with defendant about them, or some of them, on various occasions. As to most of them he was inclined to treat them as being of little consequence. She did not look at them that way. There were many things which it seemed to her they could not talk over fully. They talked over these matters many times and each agreed that a serious effort would be made to try to get along. On Saturday before she left him on Tuesday they had a long talk, at which each of them suggested matters for discussion, both of them cried, but without reaching any definite result.
Plaintiff’s father, called as a witness in her behalf, testified:
“I had a conversation with the defendant shortly after my daughter came home in June; this was the occasion of their separation. The defendant called at the house and wanted to know if Margery was there. I told him she was, but she wasn’t well and didn’t feel like talking to him at that time, but that I would like to talk to him later and see what we could do about the situation. My object in seeing him was to see if something could be done to bring them together. Dee seemed to take all the blame; he said he guessed he just couldn’t make Margery happy; he didn’t condemn Margery in any way but said she was a fine girl and there wasn’t any complaint he could make; he said, ‘I guess it is all me. I guess I just don’t have enough love and affection to make Margery happy.’ ”
Later he went to defendant’s apartment, where he talked with him for quite awhile, with substantially the same result. He testified that he had these talks with the defendant in order to see if he could get the two young people back together and see if they could make a success of their marriage; that he did everything in his power to make it work out. He was asked and answered the following question:
“You did that, of course, in an attempt to get them back together? A. Sure. I like Dee, and I wanted to see them be happy.”
Defendant, called as a witness in his own behalf, testified that at the time of the marriage he was doing clerical work at the mill; that although he was a graduate of Northwestern University, with a degree in commerce from the school of business, he had no technical skill along mechanical or any other lines, only his flight instructor’s ability; that his employment as flight instructor at Washburn College ended July 1,1944, because the class he was instructing had finished its training course. Following that he had no work for about two weeks and then was employed at the Topeka Flying Service to give flight instructions to civilians who were working and who had to take their instruction before eight o’clock in the morning or after five in the afternoon; that in this work he received $3 per hour for the time flown; that for the month preceding the trial he had earned at that work about $165; that this work was temporary in character; that he had made application to join the Navy and had passed the physical and mental tests and was awaiting a call to active duty; that when called he would be classed as an aviation pilot at a pay of $78 per month; that if he completed further training, which would take about five months, he hoped to be commissioned as an ensign, and then if he were sent overseas his pay would be $280 per month, out of which he would have to buy his own uniforms and pay his living expenses; that if he was not called to the Navy there was but little chance of his getting permanent work as a civilian flying instructor and that he would go back to his job in the mill at the same salary he had when he was married; that he had retained the apartment where he and his wife had been living for the reason that his future plans were uncertain and it was well located fbr the work he was then doing.
It was stipulated that at the time of the trial the top ceiling price of the 1942 Nash automobile owned by the parties was $1,030.
We turn now to the questions argued here. Since the evidence disclosed that the parties could not continue their marital relations harmoniously defendant makes no complaint of the fact that the court granted a divorce to plaintiff. Neither does the defendant object seriously to the division of the property between the parties made by the trial court, although the overall picture of the testimony pertaining to that matter discloses that plaintiff’s financial status was improved as a result of the marriage and divorce from the possession of an automobile on which there was an indebtedness of $340 to that of having, clear of debt, an automobile of the -value of $1,030; while defendant’s financial status decreased from the approximately $1,100 he had at the time of paarriage to less than $100. But in view of the fact that the court had made this division of the property defendant complains bitterly, (1) that the court made an award and rendered a judgment against him in favor of the plaintiff in the sum of $2,500, to be made in monthly payments extending over more than four years, and (2) in including in the cost of the action against him an item of $250 for plaintiff’s attorney, upon which execution should issue.
Respecting the alimony award, the legal questions involved are quite well settled by former decisions of this court and are to this effect: Under G. S. 1943 Supp. 60-1511, the court, in the proper case, may in its discretion render a judgment for an alimony award to be paid from future earnings; that the exercise of this authority is a judicial discretion and must be predicated upon a good reason therefor shown by the evidence in the case. It is not a power to be exercised without just cause. When complaint is made in this court that such a judgment is excessive, or that it is inadequate, the court will examine the question and decrease the judgment or increase it as it determines the facts justify. (See Flautt v. Flautt, 126 Kan. 21, 266 Pac. 746; Mann v. Mann, 136 Kan. 331, 15 P. 2d 478; Landers v. Landers, 138 Kan. 538, 27 P. 2d 231, and authorities cited therein.) Counsel have cited and commented upon our earlier cases dealing with this question. Only as they tend to emphasize the general principles just stated they are not particularly helpful to the solution of the problem before us, for the reason that each of them deals with its own particular state of facts. Without restating the facts hereinbefore set out it seems clear to this court that the judgment against defendant for alimony in the sum of $2,500 was not justified. There had been no trouble between the parties over financial matters. Aside from the few months directly after the marriage when defendant was taking training, of which the plaintiff nowhere complains, defendant was employed at a fairly good salary, plaintiff was employed for about five and one-half months; they had no income other than their earnings, which were put in a common fund and used in a manner of which no complaint is made by either of them. The charge against defendant of extreme cruelty made by plaintiff in her petition was not sustained by the evidence and the court did not find that any such cruelty existed. There was no evidence that defendant had. any bad habits such as drinking or gambling, or that he had any immoral habits or associated with persons of ill repute. The only difficulty between them, which perhaps was serious enough, arose from incompatibility respecting their domestic and private relations. In this case, after defendant had paid the normal court costs, he had nothing more than one would need for current expenses.
We see nothing in this record to justify the large award and judgment against defendant for alimony to be paid in the future. Indeed, in view of the disposition of the property of the parties made by the decree, if the court had made no award and judgment against defendant for alimony to be paid in the future, and plaintiff was here complaining of that fact, we would have difficulty in finding any reason to justify her complaint. These parties are still young. He was twenty-seven at the time of the trial. Her age was not given, but we may assume it did not exceed his. He was entering the navy, a more hazardous employment than the normal employment in civil life, where his salary would be much less than he had been earning. Either party might marry before these payments were made. In the event of his death before the full sum was paid the plaintiff would have a claim against his estate; in the event of her death prior to that time the judgment could be revived for the balance due in the name of her personal representative. (See Bowman v. Bourman, 155 Kan. 602, 127 P. 2d 464, and cases there cited.) These facts tend to complicate the lives o'f both of them.
Plaintiff did not bring suit for alimony alone, in which if she recovered she might receive payments indefinitely; she brought an action for divorce, the very nature of which is to close not only the marital relations but the financial affairs of the parties as between them.
After the decree of the court defendant could not make any of the payments on the alimony judgment without placing himself in such a position that he would have been held to have complied with the judgment and could not proceed with his appeal. After the case reached this court, upon plaintiff’s application, the court made an order that defendant should pay to the clerk of this court, for the benefit of plaintiff, $50 per month pending the further order of the court, and also should pay $50 to be used by plaintiff as expense money in the preparation of her defense to the appeal. This court is always slow to set aside an order of the trial court which is in its discretion. In deference to that this court feels it should sustain as much of the order as under any circumstances it would be possible for the court to conceive that the trial court was justified in making. The only reason we find for any additional allowance of alimony to be paid from future earnings is the fact that at the time of the trial plaintiff was nervous and worried. Our judgment is that $900 is the maximum which should have been allowed as alimony to be paid from future earnings, and upon that should be credited the sums paid plaintiff under the order of this court relating to payments of alimony pending the further order of this court.
Respecting the second item complained of by defendant in this court, the judgment against defendant for an attorney’s fee of $250 to be paid as a part of the costs of the action, for which execution should issue, it is this court’s judgment that the sum was too large and that an allowance of $150 is the maximum which should have been allowed. Inasmuch as the defendant brought the case to this court and plaintiff had to have an attorney to represent her here, for which an attorney’s fee is claimed, we'have concluded to allow an attorney’s fee for the services of plaintiff’s attorney in this court of $100 and to further modify the judgment of the trial court with respect to when the attorney’s fee should be paid so as to provide that the, total attorneys’ fees of $250 for services in both courts instead of being subject to execution shall be made payable at the rate of $50 per month beginning at the termination of the payment of the alimony judgment to plaintiff of $900, with the credits above mentioned. The payment of alimony through the clerk of this court shall cease with the payments made by the date of the filing of this opinion and the future payments of alimony and attorneys’ fees shall be made through the office of the clerk of the district court, beginning August 1, 1945.
The judgment of the trial court should be modified in harmony with the views of this court. It is so ordered.
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The opinion of the court was delivered by '
Hoch, J.:
This controversy involves rights of inheritance in certain Kansas real estate. The answer to the ultimate issue turns principally upon the force and effect to be given to a decree of divorce which the appellee had received in the state of Nebraska.
Henry J. Troemper and Nannie Harding were married in Kansas in 1910, moved at once to Nebraska and lived there continuously as husband and wife until September 22, 1942. No children were born to them and they adopted none. On September 22, 1942, Nannie Troemper filed an action for divorce in the district court of Gage county, Nebraska, where they resided, and on the same day there was filed in the divorce action a written stipulation between the parties which — omitting formal portions — was as follows:
“It is stipulated by and between Nannie Troemper and Henry J. Troemper who are husband and wife as follows:
“In the event a divorce is granted to the plaintiff in her divorce action to be filed on this day it is stipulated by and between Nannie Troemper and Henry J. Troemper, that Henry J. Troemper will assign all his right title and interest in and to certificate No. 1320 for fifty shares of capital stock of the Lancaster Corporation which is now held jointly between them; that Nannie Troemper shall be entitled to all of the household goods of the parties and that all other property owned by the parties which is now of record in their own respective names shall remain and belong to said parties individually and no claim shall be made thereon by either of the other parties.
“Henry J. Troemper further agrees to pay as alimony to Nannie Troemp'er the sum of $50.00 per month for a period of six months hereafter and no more. In addition, thereto, he shall pay to her attorneys, Hubka & Hubka, an attorneys’ fee in the sum of $50.00 and all costs of the divorce proceeding.
“Dated at Beatrice, Nebraska, this 22nd day of September, 1942.
Nannie Troemper
Henry J. Troemper”
The defendant entered his voluntary appearance and acting under provisions of Nebraska law the court heard the case upon the same day .the petition was filed and granted a divorce to the plaintiff. Material portions of the decree, entered on September 22, 1942, read as follows:
“The plaintiff was duly sworn and offered evidence in support of her petition. In consideration thereof the court finds that the plaintiff is entitled to a divorce from defendant upon the grounds as stated in her petition, the same however, not to become absolute for a period of six months from this date. The court finds further in consideration of the stipulation on file with respect thereto, signed by both of the parties that the said Henry J. Troemper shall assign all of his right, title and interest to Certificate No. 1320 for fifty shares of capital stock of Lancaster Corporation to the plaintiff and deliver the same to her, also that said plaintiff have alimony in the sum of $50 per month for a period of six months thereafter. The defendant shall be required to pay the costs of this proceeding.
“It is, Therefore, by the Court Considered, Ordered and Adjudged, that the plaintiff and defendant be and they hereby are divorced, the same not to become final until six pionths hereafter; that the defendant shall assign all of his right, title and interest to Certificate No. 1320 for fifty shares of capital stock of Lancaster Corporation to the plaintiff and deliver the same to her, in addition thereto the plaintiff shall be entitled to all of the household goods of the parties. Said defendant shall pay to the plaintiff alimony in the sum of $'50.00 per month for a period of six months from this date and further said defendant shall pay all court costs in this cause.”
No question is raised as to the regularity of the divorce proceedings. '
On October 15, 1942, twenty-three days after the divorce decree was entered Henry Troemper died intestate. In November, 1942, an administrator of his estate was appointed. Included in the inventory which he filed was the land involved in this action,'being two hundred and forty acres in Wabaunsee county, Kansas. No question is raised as to the regularity of the administration proceedings which followed. Soon after Henry Troemper died Nannie Troemper remarried and became Nannie Barz. On May 10, 1943, Nannie Barz filed in the estate proceedings in Nebraska a “Disclaimer, Release and Discharge of Plaintiff’s Interest Provided in the Decree of Divorce.” This instrument purported to have been signed on December 1, 1942.
Upon application of the administrator final settlement was had in the estate on June 10, 1943, at which time the county court of Gage county, Nebraska, found the heirs of Henry Troemper'to be “his widow, Nannie Troemper, now Nannie Barz, his sister, Mary Saffry, his brother Paul G. Troemper, and Herma Troemper and Wendell Troemper, the widow and son of his deceased brother, Edward Troemper.” We are not here concerned with the disposition of the property made in Nebraska, except that it is pertinent to note that the corporate shares of stock of the Lancaster Corporation referred to in the property stipulation, supra, were not distributed, the court holding that they went to Nannie Barz by virtue of the fact that they were owned jointly by her and Henry Troemper. As to the land here involved the judgment of final settlement and distribution recited:
“9. The real estate belonging to the deceased, located in the state of Kansas, is not by this decree assigned, and must be assigned under and by virtue of the laws of inheritance of the state of Kansas.”
On May 26, 1944, Nannie Barz filed in the probate court of Wa-1 baunsee county, Kansas, a petition for administration of the estate of Henry Troemper, setting up her claim to the Wabaunsee county land as the widow of the deceased. The probate court found against her on August 7, holding that having been divorced from him she was not an heir of the deceased and had no interest in the land, and that the heirs were a surviving brother of the deceased, a surviving sister, and the widow and son of a deceased brother.
Appeal was taken by Nannie Barz to the district court. It is not necessary to narrate various procedural steps which followed, no question of their regularity being raised. The district court found for Nannie Barz and filed a memorandum opinion' in which the legal questions here presented were fully and ably discussed.
From the journal entry of judgment we take the following:
“The court in consideration of the evidence and the written briefs filed by counsel in said cause finds generally in favor of the cross appellant, Nannie Troemper Barz; that the said Nannie Troemper Barz is the widow of Henry J. Troemper who died on the 15th day of October, 1942, a resident and inhabitant of Gage county, Nebraska, and that as such under the laws of descent and distribution of the state of Kansas, there being no children bom to the said Henry J. Troemper, all of the real estate possessed in the state of Kansas by the said Henry J. Troemper at the time of his death should be assigned to the widow, Nannie Troemper Barz, in fee simple.”
Appeal to this court followed.
The primary question here is whether Nannie Troemper was the wife of Henry Troemper at the time of his death. Second, if she was his wife at that time, is she estopped by the property stipulation set out, supra, from claiming as his widow. Involved is the question of whether the issues here are to be determined under Kansas or under Nebraska law.
More narrowly stated, the first question is whether a Nebraska • decree of divorce effects a dissolution of the marital status of the parties as of the date it is entered or is merely interlocutory in 'character, leaving the marital status undisturbed until the expiration of the six months’ period provided for under the statute and in the decree.
It is unnecessary to set out in full the pertinent Nebraska and Kansas statutes relative to decrees of divorce. They are substantially similar. The Nebraska statute (R. S. of Neb., 1943, § 42-340) provides that “a decree of divorce shall not become final or operative until six months after trial and decision,” etc. The Kansas statute (G. S. 1935, 60-1514) provides: “Every decree of divorce shall recite the day and date when the judgment was rendered in the cause, and that the decree of divorce does not become absolute and take effect until the expiration of six months from said time.” Along with section 60-1514 of our statute should also be noted the provision of section 60-1512, G. S. 1935, that “it shall be unlawful for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement.”
The Kansas and Nebraska courts have interpreted the respective statutes differently as to when the marital status is dissolved. We have held that under our statute the marital status is dissolved as of the date of the decree. (Durland v. Durland, 67 Kan. 734, 74 Pac. 274; Cooper v. Bower, 78 Kan. 156, 163, 96 Pac. 59; Conway v. Conway, 130 Kan. 848, 850, 288 Pac. 566.) The six months’ period provided for in our law has been construed as merely a prohibition against remarriage of either party during that period. As to the effect of the provision upon marriage contracted outside the state during the six months’ period we are not here concerned. In Nebraska a contrary view has been reached. It is there held that no dissolution of 'the marital status takes place under a decree entered under the Nebraska law until the expiration of the six months’ period. (Holmberg v. Holmberg, 106 Neb. 717, 184 N. W. 134.) In Nebraska the divorce proceedings are treated simply as a pending action during the six months following the entering of the decree.
It might possibly be argued that there is sufficient difference in the wording of the two statutes to explain divergent results reached in the interpretation. But we are not here concerned with that question. The general rule is that where the highest court of a state has determined the meaning of a statute of that state its in- • terpretation is controlling. (59 C. J. 946; 21 C. J. S. 358; 50 Am. Jur. 316, 317; Crooker v. Pearson, 41 Kan. 410, 21 Pac. 270.)
It follows that in Nebraska where the parties were domiciled and where the divorce decree was entered the appellee was the wife of Henry Troemper at the time of his death. The general rule is that the status of a person and the relation in .which he stands to other persons are determined by the law of the domicile and that such status will be recognized in every other state, at least insofar as such recognition is consistent with its own laws and public policy. (15 C. J. S. 916; 11 Am. Jur. 315.) Appellants do not question the Nebraska domicile of the parties at the time of the divorce nor do they attack validity of the Nebraska decree of divorce. Indeed, they base their contentions here upon the theory that a decree was lawfully entered under Nebraska law. They only reject the effect which the Nebraska courts give to the decree. They do not deny that in Nebraska, under Nebraska law, appellee was Henry Troemper’s wife at the time of his death and therefore regarded as his widow for purposes of inheritance. They ask us to recognize that divorce proceedings were had in Nebraska but to apply Kansas law in determining the effect of the decree which was there entered. In this connection appellants urge that the full faith and credit provision of the constitution of the United States (Art. IV, § 1) is inapplicable here for the reason that no Nebraska court has made any finding regarding the marital status of the Troempers at the time of the death of the deceased; that that constitutional provision relates only to a judicial finding of an existing fact and not to construction of state statutes. We shall not pursue that subject at length. In the first place, it is inaccurate to say that no Nebraska court has made any finding as to the status of appellee. In the administration of the-estate in Nebraska the court determined who the heirs-at-law were, finding them to be the “widow, Nannie Troemper, now Nannie Barz,” and the persons who are appellants here. In the next place, whether recognition of the fact that appellee was the wife of Henry Troemper be accorded under the principle of “full faith and credit” or under the principle of comity the same result is reached. Furthermore, when we give to the divorce proceedings in Nebraska the character and effect which the Nebraska court says they have under their divorce statutes we really have left no further question of “full faith and credit” or of comity. Appellee was married in Kansas and became a wife under our statutes. She continued to be so regarded in Nebraska.' Her status of wife, created in Kansas, was never disturbed. Finally, we find no grounds of public policy which requires us to hold, in effect, that the Nebraska court- has incorrectly construed the nature and effect of divorce actions under their statutes.
Appellants’ second major contention is that even if it be held that appellee was the wife of Henry Troemper at the time of his death the property stipulation which was filed in the divorce action determined all her property rights, and that by virtue of its terms she is now estopped from asserting any right of inheritance in the Kansas land. The contention is not good, for two reasons. The first is that under the Nebraska statute as construed by the supreme court of that state a suit for divorce abates if either party dies before the expiration of the six months’ period, is not subject to revivor, and property interests involved being merely incidental to the principal object are left as they were prior' to the divorce proceedings. (Williams v. Williams, [Neb.] 19 N. W. 2d 630, and cases there cited.) It is true that in this case there was no -provision in the decree specifically approving the property stipulation, but the stipulation was recognized in the decree, and the order as to the Lancaster Corporation stock was made “in consideration of the stipulation on file with respect thereto, signed by both of the- parties.” It is evident that the stipulation was conditioned upon the divorce being granted, and in view of the fact that under the Nebraska law a divorce proceeding is merely a pending action during the six months’ period and that the whole proceeding abated upon the death of Henry Troemper, the result was the same as if no decree had been entered.
Another answer to appellants’ contention that by virtue of the property stipulation appellee is estopped from asserting right of inheritance is to be found in a rule of law clearly and correctly stated in the memorandum opinion of the tjial court. It is well-established law that rights of inheritance are not denied to a surviving spouse except upon a clear showing that such rights had been renounced. Contracts relied upon to show such renunciation will not be so construed unless such intention unmistakably appears. (41 C. J. S. 578, 579; 30 C. J. 652, notes 56, 58; Dennis v. Perkins, 88 Kan. 428, 436, 129 Pac. 165 and cases there cited; Bemarkt v. Prouty, 132 Kan. 228, 294 Pac. 890.)
We' agree with the trial court’s conclusion that it cannot be said that such intention clearly appears. The stipulation makes no reference to rights of inheritance nor does it have any provision with reference to property rights except those conditioned upon dissolution of the marriage by divorce. There being no such dissolution we find nothing in the stipulation, even if it were to be considered still in effect, which constitutes estoppel as to rights of inheritance.
It is elementary that rights of inheritance in real estate are determined by the law of the situs. Under Kansas law, if a decedent leaves a spouse and no children nor issue of a previously deceased child all his property passes to the surviving spouse. (G. S. 1943 Supp. 59-504.) Our statute also specifically provides that “Real estate situated in this state, owned by an intestate decedent who is a nonresident of this state at the time of his death, shall pass by intestate succession in the same manner as though he were a resident of this state at the time of his death.” (G. S. 1943 Supp. 59-503.)
Under these statutes and under the facts and conclusions stated Nannie Barz was the sole heir to the real estate in this state owned by Henry Troemper at the time of his death.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover the amount fixed under the terms of an insurance policy as payable upon the destruction by fire of property described therein. The plaintiff was successful. A jury returned a verdict in her favor for the full amount of the policy and judgment was duly rendered thereon. The defendant appeals.
On June 5, 1943, Hodges Brothers were the owners of a stucco frame building located on Highway No. 50 near the city of Olathe and procured a policy of insurance from defendant by the terms of which it insured such building together with certain fixtures and appurtenances for the sum of $1,250 for a period of three years against all direct loss and damage by fire. They sold the property on June 15, 1943, to the plaintiff, transferred title to her by deed and took as a part of the consideration a mortgage thereon in the sum of $1,087.46. Subsequently they notified defendant’s agent of the sale and advised him they' desired that the insurance be kept in force and effect. On January 4, 1944, a fire occurred which totally destroyed all property insured. Plaintiff then brought this action to recover the full amount named in the face of the policy.
The plaintiff’s petition is quite lengthy and its recitals do not require detailed relation. When stripped of surplus verbiage it reveals her cause of action is predicated upon the premise that defendant waived the provision of the policy providing that the entire policy should become void if any change took place in the title to the insured premises without written consent thereto being endorsed on or added to it.
Defendant’s answer admitted the issuance of the policy to Hodges Brothers and conceded the sale and transfer to plaintiff of the property therein covered as well as the execution of the mortgage, but alleged that such transfer and mortgage were without its knowledge or consent and that it did not have any knowledge of those transactions until long after they were completed. The answer further referred to the provision of the policy with respect to sale, charged that it had been violated with the result the entire policy had become null and void, specifically denied the defendant had ever agreed, or in fact been requested, to keep the policy in force for the benefit of the plaintiff and disclaimed liability to her under such policy in any sum.
With issues joined as herein related the cause came on for trial to a jury. During the course of the trial defendant demurred to plaintiff’s evidence, requested the court to instruct the jury to return a verdict in its favor, and moved to set aside the verdict because it was not supported or sustained by the evidence. Refusal of the trial court to sustain the demurrer or either of the motions are the principal grounds upon which defendant bases its right to a reversal of the judgment. Other grounds are assigned as error but will not be here detailed for the reason they will be subsequently mentioned.
Preliminary' to consideration of the immediate grounds of error just referred to we believe it will simplify the issues to review certain canons of fundamental law applicable to the determination of liability on an insurance policy, irrespective of the status of the evidence, in a situation such as is disclosed by the pleadings and the statement of uncontroverted facts immediately preceding them. With that in mind we direct our attention to those principles which are too well established in this jurisdiction to admit of dispute and which, as we have indicated, must be recognized and applied in every case where the pleadings and the facts revealed by the evidence hereinafter fully discussed, raise issues such as those with which we are confronted in the case at bar.
The first, so elemental as to require no citation of authority, in fact apparently conceded and certainly not argued by appellant, is that in the procuring of protection against fire by the issuance of an insurance policy one party may enter into a contract with the insurance company the benefits of which will inure to a third person and furnish him with the basis for a cause of action against the company even though he has had no part in the actual transaction and such action is taken without his request or knowledge. That this is true is evidenced by the countless number of insurance cases where recovery has been allowed on policies of insurance under circumstances where the owner of property has procured the insurance and made it payable to himself or his mortgagee as their interests might appear, or its converse, where the mortgagee has insured the property under the terms of a policy providing such insurance was payable to him or to the record owner in proportion to the interest each might have therein at the time a loss occurred.
Another is that where, as here, a stipulation is inserted in a policy of fire insurance for its benefit the company issuing such policy may waive such provision and may be estopped from asserting its forfeiture. (Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 533; Columbian Nat. Life Ins. Co. v. Rodgers, 116 F. 2d 705, certiorari denied, 61 S. Ct. 838, 313 U. S. 562, 85 L. Ed. 1521; 29 Am. Jur. 604, § 800; 44 C. J. S. 1092, § 275 [2]; 16 Appleman, Insurance Law & Practice, 601, § 9083.)
That the waiver to which we have just referred may result from action on the part of the company’s general agent and may be either express or implied, oral or written, and be as binding upon it as if such were its own act — in fact is its own — has long been the rule under our decisions.
In the instant case it is conceded appellant’s agent was authorized to issue policies and consummate contracts of fire insurance. Under such conditions and circumstances we have repeatedly held such an agent to be a general agent with authority to bind his company by an act, agreement, waiver, or representation within the ordinary scope and limit of insurance business which is not known by the assured to be outside the power and authority granted to such agent. (Am. Cent. Ins. Co. v. McLanathan, supra; Insurance Co. v. Barnes, 41 Kan. 161, 21 Pac. 165; Despain v. Insurance Co., 81 Kan. 722, 106 Pac. 1027; Insurance Co. v. Munger, 49 Kan. 178, 30 Pac. 120, and Insurance Co. v. Bank of Pleasanton, 50 Kan. 449, 31 Pac. 1069.)
To the same general effect is Cless v. Republic Casualty and Surety Co., 128 Kan. 416, 419, 277 Pac. 793.
So, also, under our decisions no question exists as to the power and authority of a general agent to modify the insurance contract or waive a condition of a written fire insurance policy by parol. And this is true even though the policy contains a printed stipulation to the contrary. (Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637; Insurance Co. v. Munger, supra, and Sedlachek v. Home Ins. Co., 141 Kan. 626, 630, 42 P. 2d 557.) Although not directly in point for further exemplification of the same proposition, see Insurance Co. v. Ireland, 9 Kan. App. 644, 58 Pac. 1024; Wilson v. Insurance Co., 90 Kan. 355, 133 Pac. 715, and Yasbec v. Hartford Accident & Ins. Co., 132 Kan. 827, 297 Pac. 422.
And lastly, whatever the rule may be elsewhere, and we concede it is one on which there is a wide division of authority (29 Am. Jur. 651, § 855), this court is committed to the doctrine that with respect to provisions inserted in a policy of fire insurance for the insurer’s benefit, knowledge of their violation not followed by action on the part of the insurer canceling such policy within a reasonable time after notice constitutes a waiver and estops it from asserting the policy is null and void even though it contains a clause to that effect. In Insurance Co. v. Knutson, .67 Kan. 71, 72 Pac. 526, we held:
“The provisions of an insurance policy issued by a mutual fire insurance company organized under the laws of this state, and of the bylaws of the company attached to such policy, to the effect that the procuring of additional insurance on the property covered shall render the policy void unless the written consent of the company be indorsed on the policy, are waived by the failure of' the company either to cancel the policy or to indorse its consent within a reasonable time after notice to it of the additional insurance, and before loss occurs.” (Syl. ¶ 1.)
And said:
“The company claims that, even though it received proper notice of the additional insurance, it did not indorse its consent thereto upon the policy, and hence that the policy was void. Some two months elapsed from the giving of the notice until the loss occurred. Upon receiving the notice the company had a right to take advantage of the provisions of its policy and bylaws. The provisions quoted therefrom were inserted for its sole benefit. When it assumed to remain passive the assured was deprived of any opportunity to protect himself if the policy were to be forfeited. The term ‘void,’ as used in the contract, is to be regarded as meaning that the insurer had, at its exclusive option, the right to treat the policy as a nullity. It was put to its election whether or not it would do so upon receipt of the notice, and having failed to act within a reasonable time, it is estopped to claim a forfeiture when it became to its advantage to do so, after loss had occurred [and. cases there cited].” (p. 74.)
The rule just enunciated, although not applied because the defendant there involved was a mutual company instead of a stock company and therefore not subject to its application, was recognized and affirmed in Martin v. Farmers Alliance Ins. Co., 144 Kan. 324, 326, 59 P. 2d 25. See, also, the dissenting opinions of Mr. Justice Dawson, page 327, and Mr. Justice Harvey, page 327.
When the general principles heretofore announced are applied to issues raised by the pleadings and the conceded facts of this case such issues as we have heretofore suggested are simplified. It becomes immediately apparent so far as the grounds specifically mentioned and relied on as error are concerned, irrespective of how they are stated, that the one vital and all-important question for determination is whether under the evidence produced by appellee it can be said there appears such a waiver of the provision of the policy with respect to transfer of title as to estop the appellant company from denying liability on the ground the entire policy had become null and void because of its violation. If so, the overruling of a demurrer to the evidence was proper.
The conclusion just announced requires an examination of the evidence. Because of its importance we shall relate it at some length. Its legal effect will, of course, be determined under the uniform rule announced in all our decisions (In re Estate of Bond, 158 Kan. 776, 781, 150 P. 2d 343, also Staab v. Staab, ante p. 417, 163 P. 2d 418, this day decided, and cases there cited) that in ruling on a demurrer to the evidence courts do not weigh evidence or compare contradictory testimony; they must accept all evidence as true and consider only such portions thereof as are favorable to the party adducing it; they must disregard all unfavorable evidence, are required to give full credence to all evidence adduced by the party against whom the demurrer is lodged and give it the benefit of all inferences which may be reasonably drawn therefrom in the light most favorable to his interest.
Searching the record for evidence offered by plaintiff we find testimony by witnesses, portions of which follow: The form in which it is related is not ours but that of the parties as presented to us in the abstract and counter abstract.
D. R. Hale, an employee of Hodges Brothers:
“Testifies to property being sold to plaintiff and mortgage taken back. He was asked, ‘whether at that time or about that time you notified Mr. Stewart (the insurance agent) that you had sold this property or was selling the property to Mrs. Lattner, and was taking back a mortgage’?
“A. Oh, we notified him. I don’t remember when it was we told him be cause in the transaction the insurance wasn’t — it wasn’t included in the .statement — the new policy wasn’t. . ; . (
“Q. And did you at that time notify Mr. Stewart you were selling the property to Mrs. Lattner and you were carrying back a mortgage and the policy should be kept in force? A. We told him, but I don’t remember when it was. . . .
“Q. You did tell Mr. Stewart, didn’t you that you would pay it if Mrs. Lattner didn’t? A. Yes, sir.
“Testified, also that he had several talks with Stewart about the transfer of the property to plaintiff, and— A. I presume we discussed it for the reason he was wanting us to pay that premium and we were trying to get Mrs. Lattner to pay it.
“Q. And as you said a while ago, you think you did tell him to keep the policy in force? A. Yes, sir.
“Q. Did you, or did you not, at the time Mr. Stewart asked you about the insurance premium, and you told him about having sold the property to Mrs. Lattner and taken a mortgage back, tell Mr. Stewart she didn’t want the insurance — she was going to see another agent and get cheaper insurance? A. I don’t recall of her saying she didn’t want the insurance. She did mention that they were going to try to get the rates reduced and get some insurance that was cheaper.”
Bertha Cunningham, another employee of Hodges Brothers;
“Q. Did you at that day or time of this sale back to Lattner and the mortgage that Mr. Hodges took back — did you or not, notify Mr. Stewart of the —or talk with Mr. Stewart and tell him that the property had been conveyed back to Mrs. Lattner and you had taken a mortgage and you wanted the insurance to remain in force? A. I talked with him over the phone about it.
“Q. And did you tell him that, in effect? A. Yes, sir.
“Q. Did you ever ask Mr. Stewart to transfer this policy to Mrs. Lattner? A. I don’t think I did.
“Q. You never did. You knew it wouldn’t be binding upon this company until it had been so transferred? A. Mr. Stewart usually takes care of these things for me.
“Q. You knew that Hodges Brothers was obliged to pay the premium on this policy, is that right? A. I knew we didn’t want the policy canceled and therefore we would pay it if she didn’t.”
Bertha Lattner, the plaintiff:
“Q. Did you ever, after the fire, have any conversation with Harry Stewart, the agent of the insurance company, relative to the premium? A. Yes, I called him the morning after the fire.
“Q. Did he or not, at that time or any other time, tell you that the insurance company had been paid its premium on this property? A. Yes, sir.
“Q. He told you the company had been paid? A. He told me the company had been paid and the policy was in force.
“Q. He told you the policy was in force? A. That is right.
“Q. And, that was after the fire? A. Yes, sir.”
The foregoing is the most favorable testimony adduced by appellee in support of her position the provision in the policy with respect to sale was waived and that appellant was estopped to assert its invalidity on that account. Although unnecessary we pause to here state there was other testimony less favorable to her contention to which we have made no reference because of the rule requiring us to ignore all unfavorable or contradictory testimony and give appellee’s testimony the benefit of all inferences to which it is entitled on demurrer.
What then in the light of the rule is to be said for plaintiff’s evidence? Did it establish a waiver of the provision with respect to sale of the property? We concede it is not as convincing as might be desired. Nevertheless, when tested by a measuring stick which requires us to give it the benefit of all inferences favorable to appellee, we are -forced to conclude the agent Stewart knew— . and for that purpose he was the appellant — that title to the property insured had been transferred to the appellee, he was advised by Hodges Brothers they desired the policy be kept in force, and he at least impliedly agreed it was and should remain in full force by efforts to obtain payment of the full premium after having complete information as to the then existing status of the parties and the property. In addition, after the fire he told Mrs. Lattner the premium had been paid and the policy was in force. Under such circumstances we cannot say the trial court was not justified in concluding the provision of the policy had been waived and that appellant was estopped from asserting its invalidity. Of a certainty that conclusion was justified when in conjunction with the evidence to which reference has been made, the trial court took into consideration the additional and undisputed testimony that after having acquired knowledge of the transfer of title the company stood idly by for several months, in fact until after the fire occurred, before it made any attempt to cancel the insurance. We hold the demurrer to the evidence was properly overruled.
It would serve no useful purpose to here cite cases where provisions in policies of insurance similar to the one which confronts us have been held to have been waived. Each case depends upon the particular facts involved. Our somewhat extended search of the authorities has disclosed few cases where decision as to the sufficiency of the evidence depended on a factual situation similar to the one at bar. We have, however, found one which deals with facts almost identical. It is New York Fire Ins. Co. v. Reed (Tex. Civ. App.) 138 S. W. 2d 138. We believe the conclusion there reached was sound in principle. Since it is a bay-horse case and serves as a precedent for and fortifies our own, we make mention of it.
Having determined the ruling on the demurrer was proper we pass over other grounds of error to which specific reference has heretofore been made with the comment that evidence adduced by the appellant on its own behalf tended to strengthen rather than to weaken the appellee’s position. There was evidence from which the jury as the trier of fact could properly find the provisions of the policy had been waived. It follows there was no error in overruling the motion to direct a verdict, the motion to set aside the verdict or the contention the trial court erred in rendering judgment on the verdict because it was not supported by substantial evidence.
Another specification of error not before referred to relates to alleged erroneous instructions. We have examined those complained of and find nothing in them which requires a reversal of the judgment. Besides, the only objection made to them was that they individually and collectively did not state the law applicable to the facts and issues. That objection did not point out any defect in the instructions or direct the trial court’s attention to what appellant relied on as the basis for its contention; it was too general and under our decisions is insufficient to bring such instructions here for appellate review.
Finally, it is urged the trial court erred in not making an allowance of attorneys’ fees as a part of the judgment and in any event the allowance of a $500 attorney fee was excessive. The record reveals the matter of the allowance of the fee, although presented on the date judgment was rendered on the verdict, was taken under advisement by the trial court until the hearing of the motion for new trial. At that time such fee was allowed and ordered taxed as a part of the costs. We see nothing wrong with that procedure and the case cited by appellant does not sustain its contention.
We do, however, have more serious doubts as to the propriety of the amount of the attorney fee as allowed. The purpose of the statute allowing an attorney fee in insurance cases is not to penalize an insurance company for making what it deems to be a bona fide defense to an action to recover on an insurance policy, but to permit the allowance of a fair and reasonable compensation to the assured’s attorney in the event, after having been compelled to sue on his policy, he is successful in that effort. In the instant case the amount involved was not large, the entire trial took but two days and the transcript of all the testimony required not to exceed sixty-eight pages. In view of all the circumstances we are of the opinion the fee was excessive and direct that it be reduced to $250.
To the extent noted the judgment is modified; otherwise it is affirmed.
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The opinion of the court was delivered by
Burch, J.:
In a statutory bastardy proceeding the appellant was found to be the father of an illegitimate child. On appeal he asserts error in the giving of certain instructions, in the admission and exclusion of evidence, and in overruling the motion for a new trial. Nothing is to be gained by printing in our reports even a resumé of the evidence. Careful consideration convinces us that there was adequate proper evidence introduced which warranted the jury in finding the appellant guilty.
The principal contention advanced by the appellant is that the court abused its discretion in refusing to allow the eight-months-old child of the prosecutrix to be exhibited to the jury. The child had been in the courtroom for a part of the time during the trial. Testimony was introduced to the effect that when the baby was born it had red hair and a “rugged complexion” and that the child’s hair and complexion were the same at the time of the trial as they had been at the time of the child’s birth. A doctor testified that normally characteristics of parents are transmitted to their offspring in one way or another including characteristics as to coloring. The appellant was shown to be a dark-complexioned man and he testified that his parents and grandparents on both sides were all people of dark complexions. The mother of the prosecutrix was shown also to have been a dark-complexioned woman and we assume that the prosecutrix was likewise. After the prosecutrix had testified that the child she had in the courtroom in the morning was the child involved in the controversy the attorney for the appellant offered to exhibit the child to the jury. Thereupon the court inquired as to whether there was any objection and upon objection being made, it was sustained. After some colloquy between counsel and the court, during which counsel for the appellant again moved the court to permit the child to be exhibited to the jury, the court remarked as follows:
“The motion will be overruled. I might say in that connection I am not satisfied that it would serve any useful purpose whatsoever. These questions of resemblances of small children are a matter to speculate about, but I think that is as far as it goes. . . .
“I don’t believe it is material testimony, and I don’t believe that it is testimony of such cogent value that it ought to be considered, and that is the reason for my ruling in the case.”
On the afternoon the evidence was completed the court instructed the jury and among others, instruction No. 7 was given as follows:
“Some references have been made in the evidence to the complexion, color of the hair, and other physical appearances of the child in question. Whether or not the child in question bears physical resemblances to the defendant or fails to bear physical resemblances should not be considered by you in this case as said child'has not been exhibited in evidence, and these references to its physical characteristics are not. evidence.”
On the next morning the court amended instruction No. 7 and gave the amended instruction, together with instruction No. 8, to the jury as follows:
“No. 7. Some references have been made in the evidence as to the complexion, color of the hair and other physical appearances of the child in question. Such testimony as witnesses gave from the witness stand touching upon those questions you should consider together with all of the other evidence in the case on the question which you are called upon to decide. However, you are instructed that the child was not exhibited in evidence, and you should not consider the physical appearance of the child or attempt to compare its physical features with those of the defendant from your personal observation. As I told you before, if you consider this question you 'will confine yourselves to a consideration of the testimony of the witnesses who testified in this case upon that subject.
“No. 8. You are further instructed that in considering the testimony of the witnesses with respect to its physical appearances and its resemblances, if any, to thé defendant that you should take into consideration the age of the child, 'as it appears from the' testimony, the fact that in some instances the physical characteristics of a father may be stamped upon a child so that they definitely appear at the time of birth, that in some instances resemblances may not appear until late in the course of a child’s independent development, and that in still other instances resemblances may never appear with recognizable certainty. Sometimes a child may strongly resemble one not its father and not related to it. With the result that such evidence of paternity may be strong or weak or inconclusive, or even worthless, and you are the judges of such matters.”
Thereafter counsel for the respective parties were given additional time to present further argument to the jury pertaining to the subject matter covered by instructions 7 and 8.
Counsel for appellant does not contend that the wording of the instructions is erroneous or that the instructions do not properly and adequately state the law applicable to the subject matter provided the ruling on the request that the child be exhibited to the jury was correct. In other words, appellant’s counsel contends.that the child should have been exhibited to the jury and that, therefore, amended instruction 7 and instruction 8 should not have been given. The logical question, consequently, is whether the failure to exhibit the child to the jury under the circumstances constituted error on the part of the trial court because no contention of error is developed as to the instructions themselves.
1. The question simply stated is — Can a- trial court in a bastardy proceeding refuse to allow the child indirectly involved therein to be exhibited to the jury? Usually such a question arises in instances wherein the state on relation of the prosecutrix seeks to have the child exhibited but no sound reason is suggested as to why the rule should be any different in the event the defendant desires to exhibit the child. On the general question there is a conflict of authority. (See 10 C. J. S. 177, § 92; 7 Am. Jur. 651, § 36, and 7 Am. Jur. 701, § 121.) In most jurisdictions it is held that the child always may be exhibited when the question is one of race or color for it is well understood that there are marked external distinctions and differences between races of humanity which may enable the jury, on observation, to judge whether a child is of one race or another. In such cases the question is not dependent upon the age of the child. Such is likewise the rule where the child is marked by some physical peculiarity which is characteristic of the family of the alleged father. (See 40 A. L. R. Anno. 136.) In instances, however, where distinctions as to race and marked physical peculiarities are absent, as is true in the present case, the question sometimes turns upon the age of the infant sought to be exhibited. In such connection it is interesting to note that a child nine months old has been held too young (State v. Harvey, 112 Iowa 416, 84 N. W. 535, 52 L. R. A. 500, 84 Am. St. Rep. 350); also one eleven months old (Ratzlaff v. State, 102 Okla. 263, 229 Pac. 278) and likewise a child about a year old (Hanawalt v. State, 64 Wis. 84, 24 N. W. 489, 54 Am. Rep. 588). Regardless, however, of what may be the basis of decisions from other states, the question remains as to what is the rule in Kansas.
Our decisions hold in substance that the question of whether the child may be exhibited rests in the sound discretion of the trial court. From the case of State, ex rel., v. Browning, 96 Kan. 540, 152 Pac. 672, the following is quoted:
“. . . There are instances in which physical characteristics of a father are stamped upon his child so definitely that they distinctly appear at. birth, or even before birth. In some instances resemblances may not appear until late in the course of the child’s independent development, and in still other instances resemblances may never appear with recognizable certainty. - Sometimes a child may strongly resemble one not its father and not related to it. The result is that the evidence of paternity furnished by the features of the child may be strong or weak, or inconclusive, or worthless. '
“No arbitrary age limit for the exhibition of a child in evidence can be fixed, because maturity and permanence of features may be of slow or of rapid attainment and because marked resemblances appearing early may fade with the changes incident to growth. There is no other test that can be applied, and it becomes the province of the trial court to exercise its discretion in the matter. If in the judgment of the trial court the exhibition of the child'to the jury would appreciably tend to promote the purpose of the proceeding the exhibition should be permitted. If, however, the trial court should be satisfied that no substantial advancement toward the truth would result from the exhibition it should be forbidden.
“An exercise of the trial court’s discretion can seldom be reviewed by this court, because it can seldom be shown either that power was abused or that prejudice resulted. Like a scene viewed by the jury or the demeanor of a witness while testifying, the matter can not be presented to this court in such a way that it is authorized to substitute its judgment for that of the district court. . . .” (p. 541.)
See, also, State, ex rel., v. Lyons, 104 Kan. 702, 180 Pac. 802, and Shorten v. Judd, 56 Kan. 43, 42 Pac. 337.
Obviously, the trial court was exercising its sound discretion when it ruled upon the offer of the defendant to exhibit the child and made the comments hereinbefore set forth. Nothing in the record indicates any prejudice on the part of the trial court and this court cannot look into darkness and visualize a child who had characteristics differing so materially from those of the alleged father that it would be justified in finding that the trial court abused its right of discretion. This court is satisfied with the ■soundness of the rule heretofore established by our decisions and nothing in the record warrants us in distinguishing the' present case from others in which it has been applied. In fact, the record in the present case developed in connection with the motion for a new trial gives strong support to the wisdom of our rule and its application by the trial court. At such time an aunt of the prosecutrix testified that she had several brothers with red hair and that some of her brothers had blue eyes and that she had black eyes and lighter hair when she was born than had the baby involved in the present case. Consequently, the baby’s color characteristics may have been attributable to such a strain in its mother’s family. We do not agree with appellant’s contentions that the rule is improper or'that the trial court abused its discretion.
2. Appellant also complains of instruction No. 4, which reads as follows: The emphasized portion of the instruction is the part complained of. The instruction was lifted almost literally from our decisions, and in substance has been the settled law in this state since February, 1870, when the decision in Willetts v. Jeffries, 5 Kan. 470, was written by Mr. Justice Valentine. See, also, Gleason, Sheriff v. Comm’rs of McPherson Co., 30 Kan. 492, 2 Pac. 644; In re Wheeler, Petitioner, 34 Kan. 96, 8 Pac. 276; In re Lee, Petitioner, 41 Kan. 318, 21 Pac. 282; In re Bolman, 131 Kan. 593, 292 Pac. 790; and see, also, 7 C. J. 967, § 58, 10 C. J. S. 145, § 33.
“The ultimate purpose of a bastardy proceeding, such as this, is to establish the paternity of the bastard in question, and to require the father of such child to contribute to its support and maintenance so that the child will not be wholly dependent upon the mother for support, or upon public or private charity jor its maintenance and education.” (Emphasis supplied.)
As we construe appellant’s argument the principal objection to the instruction arises by reason of the reference to the possibility of the unfortunate child having to be supported by public charity if the defendant is not found to be the father of the child. Such an instruction may afford an opportunity for counsel in argument to contend that taxpayers, some of whom may be members of the jury, may be forced to contribute indirectly to the support of the child if the defendant is not found guilty. Therefore, it is contended that the defendant was prejudiced by such an instruction. In support of such contention appellant cites the case of State v. Netherton, 128 Kan. 564, 279 Pac. 19. The cited case involves a murder trial in which a so-called “who else” argument was made calling for the defendant to clear himself by pointing out another on whom the guilt could be placed. No such argument appears to have been made in the present case and we do not regard the citation as being in point.
Of course, the one question to be decided by a jury in a bastardy proceeding is whether the defendant is the father of the child. In the present case instruction No. 3 reads as follows:
“In order to establish the case for plaintiff it is necessary for plaintiff to prove by a preponderance of the evidence that . . . the defendant, Lester Conn, is the father of said child.”
It is well settled that the instructions must be considered as a whole and that no special instruction should be singled out as the law of the case. Such an admonition was given to the jury in instruction No. 10. There is nothing in the record which justifies the contention that the jury must have disregarded instruction No. 3 and given special consideration to instruction No. 4. Regardless of such a possibility, the court is of the opinion that instruction No. 4 is a fair statement of the law relative to the purpose of the proceeding and that if the statement is prejudicial to the defendant any such prejudice is inherent in the nature of the proceeding rather than in the instruction.
The motion for a new trial raised only the same questions hereinbefore considered and counsel for appellant has abandoned all other specifications of error as to the admission or exclusion of other evidence not herein commented upon.
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The opinion of the court was delivered by
Hoch, J.:
This is an appeal from a conviction of murder in the second degree. ’
In the early morning of April 11,’ 1944, the police were called to the home of Hassell R. McCoy,' the appellant, in Salina, Kan., and found his wife, Evelyn McCoy, lying on the 'floor mortally wounded. She was unconscious and died very soon after their arrival. The only other person there when they arrived was the appellant, who was leaning over the prostrate form of his wife apparently making an effort to revive her. He was taken into custody and subsequently tried on a charge of murder in the first degree. Appellant’s defense was that he had accidentally killed his wife while demonstrating to her, at her request, how to use a revolver. At the close of the state’s evidence the defendant moved to discharge the jury, which motion was overruled.
The defendant rested his case without offering any testimony or other evidence. Among other. instructions the court instructed the jury as to murder in the first degree, murder in the second degree, and as to manslaughter in the third and fourth degrees. No complaint is made that instructions were not given as to other crimes of lesser degree than murder in the second degree.
A verdict of murder in the second degree was returned, a motion for a new trial was filed and overruled, judgment was entered on the verdict and the defendant was sentenced “for a term of fifteen years and until such time as he shall be discharged by law.” This appeal followed.
Appellant’s principal contentions are that there was no substantial evidence showing that the act was committed purposely and maliciously and that the court erred in instructions given and in refusing to give certain instructions requested.
We first consider the evidence. It is elementary that we do not weigh conflicting evidence. That is a province of the j,ury. We examine the record to determine whether there is an entire absence of substantial evidence proving or tending to prove some essential element of the crime. If from all the facts' and circumstances disclosed by the evidence the jury might reasonably draw an inference of guilt, a verdict of guilt will not be disturbed. (State v. Long, 148 Kan. 47, 79. P. 2d 837.)
What was the evidence upon which the state relies? The gravity of the issue, both from the standpoint of the defendant and of the state demands that the record be examined thoroughly, with greatest care, and without prejudice. That we have sought to do. No purpose would be served by -full recital of the evidence. Brief extracts from the testimony will be given, and other evidence which the state contends supports the verdict will be summarized.
On the evening of April 10, 1944, McCoy and his wife attended a party held at a place in Salina called Dreamland. Five or six couples were present. Several witnesses testified that there was argument between them during the evening. One of those present at the party testified:
"Q. Tell the court and jury, please, in your own language, what, you saw and what you heard between McCoy and his wife that evening? .A. I was sitting in this booth, facing the south and I heard a little noise, and I looked around just in time to see Mr. McCoy slap his wife and his wife slap him and him slap her.....
“Q. Did you observe anything else there that evening between McCoy and his wife? A. More than I seen her walk over to the door and Mr. McCoy walk over and reach over and get her by the arm and bring her back. . . .
“Q. You say she walked over to the door? A. Yes, sir.
“Q. What did she do next? A. Mr. McCoy went over and took her by the arm and brought her back over and they was sitting there talking.
“Q. Did he say anything to her that you heard? A. No, sir; I couldn’t hear anything they was saying.
“Q. Tell the court and jury, please, whether or not anything else happened between McCoy and his wife that evening? A. Nothing more that I saw; or heard.
“Q. How many times did McCoy, if you know, strike his wife there that evening?
“Mr. Norton: That is objected to as repetition.
“A. Twice.
“Q. Now, you say you saw Mr. McCoy slap her? Was it hard enough to cause any bruises on her body? A. Not that I could see.
“Q. Just kind of a little love tap, is that right?
“Mr. Brettle: Objected to as leading the witness.
“Mr. Norton: This is cross-examination.
“The Court: This is cross-examination. Overruled.
“A. I wouldn’t know whether you would call it a love tap or not. It looked like he used his wrist more than anything else.
“Q. Just kinda slapped her like that? (Indicating). A. I was too far off to hear anything. In fact, I just- looked around when that happened.
“Q. It wasn’t enough that any of the parties around there rushed up and grabbed Mr. McCoy, was it? A. Not that I saw.
“Q. And then she struck him back? A. Yes, sir.
“Q. And then he boxed her again, is that right? A. Yes, sir.”
Another witness testified:
“Q. You say Mrs. McCoy started to go out the door, is that it? A. Yes, sir.
“Q. All right. A. And Mr. McCoy brought .her back in.
“Q. Do you recall how he brought her back? A. He just put his arms around her and brought her back in.
“Q. What, if anything, happened after he brought her back into the room? A. He talked to her there at the door a little bit. I was away from them.
“Q. You didn’t hear that conversation? A. I didn’t know what was said; no, sir.
“Q. What next happened? A. Mr. McCoy went on back in the little room it seems to me, and began talking with some of the other men. There was Mr. Scheidt and Mr. Lykke back in that little partition.
“Q. What next happened? A. The next thing, Mrs. McCoy seemed to take her arm and threw the glasses or bottles, whatever it was, that was setting on the bar there. Seemed to brush them off on the floor.
“Q. Anything further happen? A. In a few minutes or right along that time, she hurled a glass or bottle or something through the air, because it struck.
“Q. What further happened? A. Well, then things seemed to quiet down.
“Mr. Norton: Just a moment, that is objected to as a conclusion.
“The Court: I am going to let her answer the question. Go on and answer it and I will cut it out if it is necessary.
“A. And then Mrs. McCoy made a rush at Mr. McCoy, grabbing him by the hair like this. (Indicating) Mr. Scheidt took Mrs. McCoy and pulled her back, and I stepped in front of Mr. McCoy.
“Q. What did you -say to Mr. McCoy? A. I said, ‘This isn’t a very nice farewell party to be acting like this.’
“Q. Did they say anything to you? Either McCoy or his wife say anything in answer to that question? A. I think Mr. McCoy said, ‘I’m sorry.’ I wouldn’t swear, but I think he said, ‘I’m sorry.’
“Q. Did anything further happen that evening between McCoy and his wife? A. No, I think that was about all.”
Another witness testified:
“Q. And what did you hear and what did you see? A. Well, I knew they were arguing. I couldn’t tell what they were arguing about because I couldn’t hear them.
“Mr. Norton: Just a moment, that is objected to as not responsive to the • question.
“The Court: Overruled. Proceed and answer the question.
“A. They were fussing. I could tell by the tone of their voice, but what they were fussing about, I don’t know.
“Mr. Hoffman: Just a minute, that is stating a conclusion of the witness, if your Honor please.
“The Court: Overruled.
“Q. Go ahead and tell your story. A. Well, they were just fussing. I don’t know what it was about or why or anything.
“Mr. Hoffman: We object for the same reason. Let her tell what happened. She can tell what was said or done.
“The Court: She is telling what she knows. She doesn’t tell what you think she ought to tell, but shé is telling what she knows. Proceed and answer the questions. Is that all you saw? A. Well, there were some pop bottles thrown. Who threw them I don’t know.
“Q. During a considerable portion of the time you were there, there was an argument between McCoy and his wife, is that right? A. At times, yes.
“Q. In other words, it continued during the course of the evening?
“A. Yes, there was arguing. But at times they were — well, as you say, they was loving.
“Q. At times it would die down and then it would start up again? A. That’s right.”
None of the witnesses who had been guests testified as to the time when the McCoys left the party.
Ervin Hindman, a Salina patrolman, was in a patrol car with Dallas Wyatt, another patrolman, when they received a call at 4:41 a. m. to go to the McCoy home. From Hindman’s testimony we take the following:
“A. As we got out of the car and stepped up on the porch and got to the door and saw Mr. McCoy astraddle Mrs. McCoy who was lying on the floor, and as he looked up and saw us, he got up and come to me and said ‘My God, Erv, I’ve shot my wife.’ He was in his pajamas. She was in a bathrobe. Nothing else. She was lying on the floor on her back in the dining room just west of'the dining room table, her head toward the east and her feet toward the west. I believe there was a table cloth, a billfold, a quart beer bottle and a glass or two on the table.
“Q. Mr. Hindman, when you arrived at the McCoy home, can you tell the jury whether or not Mrs. McCoy was still alive? A. She took two gasps after we arrived there.
“Q. What happened then? A. I went back out to the car and radioed to the station to the desk sergeant.
“Q. Was Mrs. McCoy conscious when you got there? A. No, sir.
“Q. Wbat did McCoy say to you when you first went into the home? A. He said ‘My God, Erv, I’ve shot my wife.’
“Q. Did you see a gun there? A. Not until after I had been outside to the radio.
“Q. What was the condition of McCoy’s garments as to whether there was any blood on the same? A. There was some blood on his pajamas.
“Q. Was there blood on his hands? A. Yes, sir.
“Q. What did you do after you used the radio? A. I went back in and told Mr. McCoy that the sergeant ordered us to bring him in and he would have to go with us to the station.
“Q. What did you next do as regards McCoy? A. He slipped on his shoes and walked out with us and got into the car and we took him to the station.
“The lights were on in the front room, living room and I think (I am not positive) that they were on in the bedroom. Mr. McCoy was in a very excited condition. And he said his wife had been reading some kind of a book where there had been some shooting and she told him he had ought to show her how to shoot a gun, and he was showing her when it went off. He was booked in at the station at 4:55 o’clock. There were some clothes hanging on the back of the chair that I recalled were his and there were some ladies’ clothes around. It had been raining very hard and there was water standing in the street. The robe had been pulled open and I could see the wound on her left shoulder. Saw blood on Mrs. McCoy’s face and on Mr. McCoy’s pajamas. Mostly on the upper right side. He had some on his legs where it looked like he had raked his hands. The doors were not locked." He asked me more than once to get a doctor. His condition was extremely nervous. Even after he was in jail he said ‘My God, get a doctor and see if something can’t be done for her.’ ”
In addition to testimony corroborative of Hindman’s testimony Wyatt testified that the first room as you enter the home is a living room with a bedroom to.the left. Mrs. McCoy was lying on the floor in the dining room with her head next to the table and her feet at the edge of the door into the kitchen, which was to the left of the dining room. On the east side of the living room was a studio couch with a pillow on it and a “blanket laying on there like some one had been laying on it.” The bed in the bedroom “had been mussed up.” The dining room is entered from the living room through an archway. In the northwest corner of the dining room was a typewriter on a stand and a chair. In the north side of the room was a buffet and in the southeast corner a combined clothes closet and china closet. There was a chair on the south side of the dining room table. There was blood in front of the chair by the typewriter. His testimony is somewhat confused as to whether he took the gun from McCoy’s hand or from the table. He broke the gun and took out the two shells that were in it. Only one had been fired. McCoy said: “Why did I ever own a gun? ... I have a notion to.kill myself.”
He testified that there was a bullet wound just below the collar bone, about an inch and a half or two inches to the left of the median line; that the bullet went through and came out just below the left shoulder blade; that there were no powder burns on Mrs. McCoy’s body nor on the robe she was wearing.
Guy L. Whitford, sergeant of police, testified to many of the same facts heretofore related. In addition he testified that he searched for bullet holes in the northwest corner of the room and found none there; that he found quite a few bullet holes elsewhere in the house but did not say at what places; that Mrs. McCoy’s clothing was lying around in the several rooms and that appellant’s pants were on the dining room table, and that he saw socks and other clothing; that the house was badly torn up; that the pillow on the couch was at the head and “kinda folded up” and the blanket lying at the foot of the couch was “kinda thrown in a pile”; that after he had gone back to the station he asked appellant where in the house the shoot ing occurred and that appellant said it was in the northwest corner of the dining room, and that he was showing his wife how to handle a gun or how to shoot a gun.
Paul Shanahan, sheriff of Saline county, testified that he reached the McCoy home at about five o’clock on the morning of the tragedy. He described the rooms and the furniture substantially as preceding witnesses had done. As to the couch and the scattered articles of clothing he testified somewhat more in detail, as follows:
“Along the east wall was a davenport, with some bedding on it, it looked as if it might have been prepared for someone to sleep there. There was articles of clothing scattered about. Oh, there was a lady’s slip, lady’s hose, I believe a lady’s brassiere, all in the living room. In the dining room there was a man’s trousers, laid over the south side of the table, a man’s shirt on the chair, some hose dropped around on the floor.”
He also testified that the appellant had told him that the shooting took place in the northwest corner of the dining room and that he examined that part of the room thoroughly and found no bullet holes there. He then testified that he found a bullet hole in the right front door of the cabinet in the southeast corner of the room and found the bullet lying upon some clothing, mostly ladies’ clothing, inside the cabinet. The bullet hole was about eighteen inches from the floor. Upon opening the cabinet door he saw the chips which had been knocked off the back side of the door. He said that it had rained practically all night, that the streets were wet, and that he found the damp garments scattered over the three rooms.
The cabinet door and various articles of clothing which appellant had been wearing were introduced in evidence.
Further testimony of Sheriff Shanahan was as follows:
“Q. Now, Mr. Sheriff, whai did this defendant tell you as to what he was doing and what his wife was doing at the time of this shooting? A. We first talked to Mr. McCoy at the city jail, shortly after noon of April 11. We asked him if he would tell us what happened at this — out at his home. He said, ‘Sure, I’ll be glad to tell you what happened.’ He says, T just want the truth to come out and I have nothing to hide.’ He said, ‘My wife Evelyn had been reading a detective story and — ’
“Q. Pardon me, sir, did he tell you what time it was the shooting took place? A. He didn’t say the time. The-hour. But he said it was that morning.
“Q. All right. A. That his wife had been reading a detective story and she said ‘Honey, why don’t you teach me to shoot your gun? Sometime I may want to shoot it. Or use it when you are not here.’ He said, ‘I’ll try and teach you how to fire it.’ He said, ‘Evelyn was sitting in the chair in the northwest corner of the living room, he said, I was sitting in the chair on the south side of the table in the dining room. If I said living room for Mrs. McCoy I meant dining room.
“Mr. Coyne: Yes.
“A. (continuing) He said, T got up and went around the table, opened the top drawer of the buffet, took out my revolver from the holster in the top drawer of the buffet.’ —and at that time I asked him if it was his Colt, revolver, and he said it was. ‘Removed the revolver from its holster and put the holster on top of the buffet; that the gun contained two cartridges in the cylinder’; that he stood before her and started to demonstrate how to handle the revolver and that some way his thumb slipped off the hammer and the gun discharged. She said ‘Daddy, it went off. Hold me, kiss me.’ And she sank to the floor.”
“Q. Did he state to you how far he was away from his wife when the gun went off? A. He said he didn’t know exactly, but two to three feet.
“Q. Two to three feet. Mister Sheriff, are there any powder burns — you have examined State’s Exhibit Nine, are there any powder burns on the three bullet holes in that chenille robe? A. I could find no evidence of powder burns.
“Q. Did he tell you anything as to what occurred out there at Dreamland the night before? A. No, only that they had had a party for Mr. Scheldt who was going to the service.”
“Q. What was his demeanor when he was telling you how this shooting took place? A. He seemed to be collected. He seemed to be sober. He seemed to be rational. He seemed to have full control of his faculties.
“Q. Did you ask him in your conversation with him what time he and his wife got home that morning? A. I did ask him that. And his answer he thought it was around two o’clock.”
Edgar W. Heyl, chief of police, testified that he talked to appellant at the city jail on the morning of the eleventh. At that time appellant said he and his wife went to the party at about ten thirty the night before the shooting; that the people there danced and did some drinking; that he and his wife did not dance; that there was no disturbance of any kind at the party and that he and his wife had no trouble of any kind; that they got home “possibly around twelve thirty.” The witness then related appellant’s story to him of what happened. Material parts of this testimony were as follows:
“Q. Then did you ask him what occurred when he got home that night? A. Yes, sir.
“Q. What did he say to that? A. He said that it had been raining and he drove up out' in front of the house, got out and locked the car, went into the house and undressed, and then he and his wife sat at the table and talked.
“Q. Did he tell you what he put on and what his wife put on? A. He said he had undressed in the living room and his wife had gone into the bedroom and undressed. And he had put on his pajamas and she had put on a robe. I think they call them a chenille robe.
“Q. Then what did he say occurred? A. He said his wife came oüt of the bedroom, he was sitting south of the table in the dining room, and she came over and sat down at the table in the northwest corner of the dining room facing him.
“Q. In the northwest corner? A. Yes.
“Q. Did he state what she sat in? A. Well, a chair that was there.
“Q. Yes, go ahead, Mr. Heyl. A. I asked him what he was talking about and he said, oh, general things, business, and one thing that was bothering her was a detective story that she had been reading. And she said a few nights before she had heard a gate open and it scared her, and she made the remark ‘Daddy, you have never shown me how to shoot your pistol,’ so he said ‘I’ll show you.’
"Q. Did he tell you where he got the gun? A. Yes, he did.
“Q. What did he sajr? A. He said he got up out of the chair and walked around to the east end of the table and opened a drawer in a buffet, took out his pistol out of the holster, came back around the east 'end of the table to where he had been sitting and walked around in front of his wife.
“Q. Did he state where his wife was sitting at that time? A. He said she was still sitting in that same chair.
“Q. In the northwest corner? A. In the northwest corner of the dining room, Sir.
“Q. Go ahead, sir. A. He said he stood before her with this gun and he demonstrated how he did it.
“Q. Did he state at that time how close he was to her? A. Well, he said he didn’t know, possibly three or four feet; He wasn’t sure.
“Q. Go ahead. A. He said he took the gun, turned the gun over and told her, he says ‘Now, see here, honey,- the first thing to do is to make sure that the hammer is resting on the empty shell. You pull the hammer back and revolve the cylinder till it rests on the empty shell. He says, as I let the hammer down it slipped from under my thumb and that’s when it happened.
“Q. Did he state to you in which direction the gun was pointed when he was demonstrating with his thumb on the hammer of the gun? A. Yes, sir, he said he was facing his wife and the gun was pointed northwest.” (Italics supplied.)
Chief of Police Heyl also testified as to the condition in which he found the rooms. He said that the bed was “very much disarranged”; that there was a slat lying on the floor — “one end of it”; that he examined thoroughly and found no bullet holes in the northwest corner of the room; that he found a pair of ladies’ gloves and and a pair of ladies’ hose lying on the chair in the kitchen; that the dining room was about eleven feet wide; that he carefully examined the chair in the dining room and found no stains or marks of any sort on it; that on the dresser in the bedroom he found a ring (which was offered in evidence) which he “thought tvas a wedding ring.” He further testified that he saw the bullet hole in the cabinet in the southeast corner of the room and that “the gun was held higher than the door to make this angle.”
Heyl also testified:
“Q. Now you have in your employ in the city a man named Capt. Wicker-sham? A. Yes, sir.
“Q. He is a police officer? A. Yes, sir.
“Q. At the time that you were talking to Mr. McCoy, did Capt. Wicker-sham come into the police station and in the room where you were talking to McCoy? A. Just at the time we were finishing.
“Q. And did McCoy and Wickersham have some conversation? A. They did; yes, sir.
“Q. Can you state what that conversation was? A. Capt. Wickersham came to the door of the office, Mr. McCoy looked up and said ‘Wick, I’m in trouble’; and Wick said ‘I told you that was going to happen to you.’ He said 'Do you remember the time, some time ago, that I went to the Paramount Bar and had to take you out of there when you threatened to kill your w'ife, and I told you you was too hot-headed and some day you was going td get in trouble?’
“Q. And what did McCoy say? A. He just hung his head.”
Howard Wickersham, police captain, who said he had known the defendant a little over two years, testified:
“Q. Were you present or did you come into the police station on the day of April 11, this year, while the Chief of Police was talking to McCoy? A. I did.
“Q. What did you say to him, McCoy; and what did he say to you?
“A. I said, ‘You remember what I told you.that other time I talked to you?’ And he said, ‘Yes, I do’; and he hung his head. And that was all.”
D. K. Fitch, undersheriff, testified to a conversation had with appellant a day or two after the shooting. The appellant told him that the shooting occurred in the northwest comer of the room and repeated the story, heretofore related, as to the circumstances under which it took place. Appellant told him that he and his wife had gotten home late, and were about ready to retire, when she told him about the detective story she had been reading and said she thought she ought to know something about the use of a gun. Appellant said that his wife was sitting on a chair in the northwest comer of the room. Further testimony of the witness on this point was as follows :
“A. And he said he had started to show her how to work the pistol, to turn the cylinder and so on, and that it appeared that his thumb had just slipped off of the hammer and then it happened. So I asked him if she was sitting down and he said that she was when she asked him to get it; but he said at the time that the thing happened he didn’t know for sure whether she was sitting down or standing up, or raising up.
“Q. And that is about the gist of the conversation? A. Yes. . . . He had the appearance of being grieved.”
The state’s evidence stood unchallenged, the defendant offering no evidence. While the burden was upon the state to establish guilt beyond a reasonable doubt the jury was entitled to draw any reasonable inference from the evidence, including the element of intent. This right of the jury was not abrogated by the fact that under the instructions, properly given, it could not give weight to the appellant’s failure to take the stand.
There was ample evidence of bad feeling at the party, of blows having been struck between appellant and his wife. And yet the testimony stands undenied that appellant told one of the officers that they had had no trouble of any sort that evening. The clothing scattered throughout the four rooms and the general appearance of disorder, and that both the bed and the couch had apparently been occupied, were circumstances that could be considered. It is argued that the clothing was scattered around to dry, but there was no testimony that such was the purpose. Appellant stated to several officers that the shooting took place in the northwest corner of the room, and that his wife was sitting in the chair there or was just getting up when the gun was accidentally discharged as he stood in front of her. One witness testified that appellant said the gun was pointed northwest when he was demonstrating with his thumb on the hammer. And yet the bullet was found inside a cabinet in the southeast corner of the room.
Again, the jury was entitled, in considering all the evidence, to put no credence in appellant’s story that he was demonstrating to his wife the use of a pistol at four thirty in the morning, and in doing so had the hammer back and his thumb on it — all while it was pointed directly at her. Then there was the testimony as to the comment made to appellant by police officer Wickersham about a previous warning relating to threats against his wife and that he made no reply but simply hung his head. Appellant argues that the date of such threats was not fixed and that if made they may not have referred to the wife just deceased. But there was no evidence that there had been a prior wife, and the comment of the officer would have had little meaning if there had been and the threats referred to her.
It is unnecessary to refer further to the evidence. We are unable to say that there was insufficient evidence to support the verdict— including its implied finding, under the instructions, of malicious intent.
We come to the instructions. Appellant offered no objections to the instructions that were given except to contend that the instruction given with reference to the failure to take the stand was not sufficient. We find no merit in that contention. The instruction given was as follows:
“The fact that the defendant has not taken the stand and testified in this case is a circumstance which cannot be considered by the jury as affecting either his guilt or his innocence, and the jury are not permitted to consider it or allude to it in your deliberations.”
Upon motion for a new trial it was contended that two of the instructions requested should have been given. The first one was a requested instruction to the effect that the fact that the deceased was killed by the defendant was not alone sufficient to establish a malicious intent. There would have been nothing wrong in such an instruction, but the matter was fully covered in other instructions that were given, including an adequate definition as to what constitutes “malice” within the meaning of the statute. The second requested instruction to which reference was made in presenting the motion for a new trial related to the defendant’s failure to take the witness stand, to which we have already referred. We find no error as to the instructions given or in the refusal to give instructions requested.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Jim Smith, hereinafter called defendant, was charged, under G. S. 1935, 21-549, in the district court of Butler county, with having received on or about August 2, 1944, seven chains and three boomers of the value in excess of $20, the property of Lawrence Matthews, which recently had been stolen from him, well knowing that the property had been stolen. s A jury trial resulted in a verdict of guilty, upon which sentence was pronounced. Defendant has appealed and presents fourteen assignments of error, which later will be noted.
Counsel for appellant, in the preparation of his abstract, ignored our Rule No. 5 requiring the abstracting of testimony and printed a transcript of that part of the testimony apparently regarded as being more favorable to defendant, and counsel for the state, in a counter-abstract, printed the transcript of that part of the testimony most favorable .to the state, and which had been omitted from the abstract of appellant. Notwithstanding this, we have examined the abstracts with care and find there is little material conflict in the testimony.
The facts, which the record indicates were not seriously controverted, if at all, may be stated as follows: Lawrence Matthews conducts a trucking business at El Dorado, hauling heavy oil-well equipment. The chains and boomers in question are used and are necessary to be used in loading and unloading such equipment. One of his truck drivers was Lloyd Miller, who had been in Matthews’ employ about five years, most of which time he had been driving a truck hauling such equipment. He lived in El Dorado and sometimes parked his truck on the street in front of his residence, leaving his chains and boomers on the truck. On Monday morning, July 31, 1944, he missed one of his chains, which had been marked with a cold shut. On Wednesday morning of the same week he missed six more chains and three boomers from his truck.
Defendant conducted a secondhand store in El Dorado and had been doing so for five years or more. Prior to that time, for perhaps fifteen years, he had been doing a trucking business in and about El Dorado and was thoroughly familiar with the kind of chains and boomers here in question and their use. Apparently he conducted this secondhand business alone. He had no lights in his place of business and hence did not keep it open of an evening. The bottom of the back door dragged heavily on the cement and he frequently left it open. It unbolted from the inside. He lived at the Royal Rooms, and it was his practice to retire early, to get up late in the morning and get to his store about 9:30 or 10:00 o’clock of a morning.
Dan McGlade, about 22 years of 'age at the time of the trial, and Ernest Huskey, aged 24, had lived about El Dorado and had been guilty of various infractions of the law. In November, 1941, both of them had pleaded guilty to the charge of burglary and larceny of the Roxy Theater at El Dorado and were sentenced to the reformatory at Hutchinson on November 28, 1941. Both had been paroled from that institution March 1, 1943, after which Huskey had been working quite steadily. McGlade had worked rather intermittently,, a part of the time for Matthews. On August 2, 1944, they met in El Dorado and McGlade proposed to Huskey that they steal some chains and boomers from Lloyd Miller’s truck and sell them to defendant. Huskey consented. That night, about 11:30 o’clock, they took from Miller’s truck, which was parked in front of his residence, six chains and thre§ boomers, which they carried and placed in the weeds near the back door of defendant’s store. The chains were heavy and the young men made two trips, carrying a part of them each trip. They went back to get some more boomers when someone yelled at them and fired a pistol, and they ran. The next morning McGlade went to the store and waited for the defendant to come, which he did about 10:00 o’clock, and the chains were brought into the store.
Lloyd Miller missed the chains when he went to his truck about 7:30 o’clock Wednesday morning and reported the loss to the sheriff. Sometime in the morning, perhaps about 11:00 o’clock, the officers went to defendant’s place of business and found the chains and boomers. Defendant told them McGlade had brought them in. They were the only chains and boomers in the store. There were seven chains and three boomers. The sheriff took them and kept possession of them until the trial. McGlade and Huskey were picked up by the officers, charged with the theft, admitted it, their paroles were revoked, and they were returned to the reformatory at Hutchinson. At the time of the trial they were brought to El Dorado to testify as witnesses for the state.
The material controverted question of fact is whether defendant knew the chains and boomers had been stolen. McGlade testified that he stole one chain from Miller’s truck on Sunday night and the next day took it to the defendant and sold it to him for $2. At that time he asked defendant if he would buy any more, and defendant said he would buy a hundred of them if he could get them; that on Tuesday he met Huskey and told him they could get some chains and sell them to defendant, and Huskey agreed to go with him; that on Tuesday evening, about 8:00 o’clock, he talked with defendant in front of his store and told him he could get six chains and some boomers, and defendant told him he would give him -$2 apiece for the chains and $1 apiece for the boomers; that he and Huskey got the chains and boomers that night about midnight, carried them to defendant’s store and put them down in the weeds until morning; that the next morning he went to defendant’s store and waited for him to come; that he came about ten o’clock; that he told defendant that he had brought him more chains; that defendant went with him and opened the back door and helped him carry them in and agreed to pay him $2 for each of the chains and $1 for each of the boomers, but said, “You caught me just about broke”; that defendant, gave him two one-dollar bills and told him to come back that afternoon. He was picked up by the officers before he went back. Respecting these matters defendant testified that he did not buy the one chain on Monday; that he did talk with McGlade in front of his store on Tuesday, but that it was sometime in the morning; that McGlade then asked him if he would buy some tools and he told McGlade that he didn’t want them; that when he went to the store, about ten o’clock Wednesday morning, McGlade wTas there. There were also some customers, whom he waited on, and then went to the back part of the room where McGlade told him he had some things he wanted to sell; that the chains and boomers were already in the building; that he asked McGlade where he stole them and was told that they were Matthews’ chains and were stolen from Miller’s truck; that he told McGlade to take them out of the store, that he didn’t want them, that the officers would be there in twenty minutes; that McGlade left by the front door, but did not take the chains away, and that in fact the officers were there in about the time he had estimated. He specifically denied that he ever told McGlade that he would purchase the chains, denied that he gave him any money for them, or promised him any money.
The principal point stressed by appellant in this court is that McGlade was a man unworthy of belief. His cross-examination disclosed that he had been a rather consistent petty criminal. On cross-examination McGlade not only admitted the burglary and robbery of the Roxy Theater, but admitted that he had committed perhaps as many as sixty crimes and had been arrested and either fined or sentenced to jail for as many as a dozen offenses. The cross-examination of defendant disclosed that he had had quite a criminal record; that he had been tried and convicted in Sedgwick county for highway robbery and served a term in the penitentiary, and that repeatedly he had been arrested for minor offenses. The weight to be given to the testimony of each of these witnesses was for the jury. If under all the facts and circumstances they believed the testimony of McGlade as distinct from that of defendant this court is in no position to say that the jury reached a wrong conclusion.
We take up now the other points argued by appellant: (1) That the chains and boomers 'were not properly identified. Matthews positively identified three of the chains as belonging to him and said the other chains and boomers were of the kind he used. Miller testified that all the chains and boomers were the ones he used on the truck and belonged to Matthews. McGlade and Huskey testified they took them from Miller’s truck to defendant’s store, and defendant told the sheriff that McGlade had brought them in. There is no lack of proper identity.
(2) Appellant complains that the testimony of Matthews and Miller as to the value of the chains was based upon an OPA ceiling price. That is hardly a correct analysis of their testimony. Matthews testified that four of the chains were 24 feet long and cost $12 each, that the other chains were 22 feet long and cost $10.50 apiece; that the boomers cost $5.50 each; that late in June, 1944, he bought a used truck with its equipment and inquired the OPA price on used chains and boomers and was told that it was 67% percent of the cost, and gave this as a fair value of the chains. Miller testified that four of the chains which he identified as having an “American head” were as good as new and estimated their value at 90 percent of the cost; that the other three chains were lighter and had been pulled harder, and he estimated their value at 60 percent of the cost. Defendant testified that he had bought and sold used chains and boomers at his store and had bought some at sales, and that a reasonable price would be $2 each for the chains, $1 each for two of thé boomers, and 75 cents for the others. Since this case was being tried in a locality where these chains and boomers were in general use it may be that the jury had some idea of their value. But, passing that, we think there is no just criticism of the testimony of Matthews and Miller as to their value, neither was there lack of evidence to show that their value was in excess of $20.
(3) That the court did not permit defendant to testify as to the value of the chains after he had qualified as an expert. This point lacks merit. Defendant testified as to their value. The only limitation we find in the record respecting defendant’s testimony on this point was when defendant was asked a question, designed to bring out his knowledge of the value of such articles ten or fifteen years earlier, and the court expressed the view that was too remote. We think the observation was good.
(4) That the court allowed too extensive an examination of defendant on cross-examination as to unrelated offenses. The record indicates that counsel for the state had a record of those offenses, and when he undertook to ask about them, and objection was made, the court advised the jury that the matters being inquired into related only to the credibility of the witness; whereupon defendant’s counsel admitted the record. The record was not introduced in evidence, but the county attorney asked questions concerning it, all of which were answered by the defendant without further objection of counsel. We see no error in this.
(5) That the court erred in refusing defendant’s request to introduce in evidence a record pertaining to cases of the state’s witnesses McGlade and Huskey. At the time those witnesses had pleaded guilty to the burglary and robbery of the Roxy Theater no evidence was taken, but before announcing judgment the court inquired of each of them as to previous offenses. Both of them answered, not under oath. McGlade told of the large number of offenses which he had committed, for some of which he had been prosecuted. Huskey told of a few that he had committed. The court reporter took down the statements and they appear later to have been transcribed. The court sustained the state’s objection to the introduction of that record, but defendant’s counsel inquired of each of those witnesses at length about each of the things they told the court on that occasion. We think defendant got the full' benefit of that situation and that no error was committed in the court’s ruling.
(6) That the court in its instructions did not accurately quote the statute under which defendant was being tried. It is true the court summarized the statute instead of quoting it at length, but there is no inaccuracy in the summary. This point is not well taken.
(7) That the court in its instructions summarized two other sections of the statute. These sections bring out the distinction between grand and petty larceny of property, depending upon its value, whether more or less than $20. While perhaps this was not essential, there was nothing wrong with it in view of the fact that the punishment for receiving stolen property, knowing it to be stolen, is the same as that for the larceny of property.
(8) It is contended the court failed to define and give the legal meaning of the word “receive” and the word “possession.” This point is not well taken. The court gave one instruction on the word “receive,” which is complete and accurate, and in four of the other instructions the court explained in detail and as applied to the situation here what would constitute receiving of the property on the part of the defendant.
(9) That the court failed to follow the information as to the number of chains alleged to have been stolen and to have been received by defendant. The information gave the number as seven, but the evidence disclosed that one chain was stolen Sunday night and the other chains and boomers were stolen Tuesday night. There is perhaps some conflict in the evidence as to when the chain first stolen was taken to the defendant. McGlade’s testimony indicates that was done Monday; under defendant’s testimony they must all have been taken to his place at the same time. Perhaps for that reason in one of the instructions the court spoke of six chains. We cannot see how that difference was detrimental to defendant.
(10) Appellant complains that the court instructed the jury in substance that the appellant’s past record was no criterion as to his guilt or innocence in the charge upon which he was being tried. That seems to us to have been favorable to defendant and forms no basis for his complaint here.
(11) It is contended the court erred by failing to instruct the jury on defendant’s theory of defense. We see no basis for that contention. The defense was one of not guilty; that he had never had any talk or bargained with McGlade to the effect that he would buy the property, and 'that in fact as soon as he knew about it he told McGlade to take it out of his premises and that he would have nothing to do with it. The court gave complete instructions upon that theory of the case.
(12) That it was error for the county attorney to comment upon the failure of defendant’s wife to testify in his behalf. There is nothing in the record before us to show that was done. No misconduct of the county attorney was mentioned in the motion for a new trial, so the record does not show that anything of that kind occurred, or, if so, it was ever called to the attention of the trial court. The county attorney in the state’s brief denied that such a thing was done, and in the oral argument he stated that he had never heard of it'until appellant’s brief was filed. After the state’s brief was filed counsel for the defendant procured the affidavits of a number of witnesses to the effect that they were present in the court room at the time of the argument and that such a statement was made by the county attorney. These affidavits have been filed in this court. In addition to denying that the statement was made the county attorney has filed in this court records of- the district court of Butler county showing that defendant and his wife weré divorced sometime before the case' was tried. This court declines to consider either the affidavits or the record of divorce. If there was any misconduct of that character it should have been called to the attention of the trial court promptly so the court might have admonished counsel and properly advised the jury. Certainly it should have been called to the attention of the court on the motion for a new trial. Controverted issues of that kind cannot be tried in this court on appeal. The' point is not well taken.
(13) Complaint is made of overruling the motion for a new trial. Nothing is argued on that point other than matters hereinbefore mentioned.
(14) Defendant called two fitnesses who gave some testimony in his behalf, none of which was very vital to this case. The county attorney, in cross-examination, asked them questions which pertained to their credibility. Counsel for appellant complains of that on the ground that it was not proper cross-examination. The. point is not well taken.
There is really nothing in this cáse except a controverted question tif fact, which we previously discussed. There was no error in any of the specific points argued by appellant. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Each of sixteen insurance companies, incorporated under the laws of a state other than Kansas and previously admitted to do business in this state, brought mandamus proceedings in this court seeking an order compelling the commissioner of insurance of this state to issue to them respectively a certificate of authority to do business in this state during 1945 without payment on their part of the premium taxes on their 1944 business (and some of them without payment of the license fees for their agents), which payments our statutes (G. S. 1935, 40-252 B, 40-253) require as conditions precedent to the issuance of such certificates; and in addition thereto the fire insurance companies seek such certificates without the payment of the firemen's relief-fund tax which our statutes (G. S. 1935, 40-1701 and G. S. 1943 Supp. 40-1702, 40-1703) require as a condition precedent to the issuance of such certificates. Other insurance companies similarly situated have intervened. Only three of the cases, Nos. 36,428, 36,445 and 36,448, are fully abstracted. The other plaintiffs and the intervenors have stipulated to abide the result in some one of the three cases. (See Note 1 for more detailed statement.)
Plaintiffs contend that our statutes above cited, though previously regarded as valid and complied with by plaintiffs, were rendered void by the decision of the Supreme Court of the United States, June 5, 1944, in U. S. v. Underwriters Assn., 322 U. S. 533, 64 Sup. Ct. 1162, 88 L. Ed. 1440. They further contend that by Public Law No.. 15 of the 79th Congress, first session (set out in Note 2), congress exceeded its powers, and that in any event the law has no effect upon the questions here involved.
Shortly stated, our statute (G. S. 1935, 40-252 B) provides that insurance companies organized under the laws of any other state, territory or country shall pay the following annual fees: For filing annual statement, $50; for state school fund, $50; for renewal of certificate of authority, $1, and $2 for each agent’s license issued or renewed, and in addition thereto shall pay a tax upon all premiums received during the preceding year at the rate of two per cent; and G. S. 1935, 40-253, provides that when the laws of a state under which the insurance company was incorporated require the payment of greater taxes, etc., from insurance companies of other states than is required by the existing laws of this state, then such companies shall pay the taxes, etc., which would be required by a company organized in this state in order to do business in such other state. These provisions were first put into our law in 1871 (Laws 1871, ch. 93, § 17) and with slight amendments, not necessary to note, have continued to be a part of the laws of this state. That portion of the law of 1871 which is now G. S. 1935, 40-253, was attacked in the case of Phoenix Ins. Co. v. Welch, 29 Kan. 672 (opinion by Brewer, J.), as being unconstitutional upon the grounds, (1) that its validity depends upon the legislation of some other state, and (2) that it conflicts with section 1 of article 11 of our constitution relating to equality of taxation. The court held the legislature has authority to pass a law the operation of which is by its terms made to depend upon a contingency, even though that contingency be some action of the legislature of another state; and further held that the fees and charges required by the statute are in the nature of licenses, and as such are not subject to the constitutional provision of equality of taxation. On the first point the decision was cited and followed in City of Pittsburg v. Robb, 143 Kan. 1, 53 P. 2d 203, where one of our statutes was made contingent upon an act of congress. In the opinion (29 Kan. 674-5) the court took note of the fact that the provision in question is referred to in insurance circles as “a retaliatory” clause, and said:
“It seems to us more justly to be deemed a provision for reciprocity. It says, in effect, that while we welcome all insurance corporations of other states to the transaction of business within our limits, we insist upon a like welcome elsewhere, and that if other states shall attempt, directly or indirectly, to debar our corporations from the transaction of insurance business within their borders, we shall meet their corporations with the same restrictions and disability. It is, in brief, an appeal for comity; a demand for equality. As such, it is manifestly fair and just. It arouses no sense of injustice, and simply says to every other state in the Union: ‘We will meet you on the basis of equality and comity, and will treat you as you treat us.’ ”
This decision has stood throughout the years. Our later cases dealing with this statute have involved its application to the facts involved or to methods of computation of the tax. (State, ex rel., v. Wilson, 102 Kan. 752, 172 Pac. 41; Employers Casualty Co. v. Hobbs, 149 Kan. 774, 89 P. 2d 923; Pacific Mutual Life Ins. Co. v. Hobbs, 152 Kan. 230, 103 P. 2d 854; Employers Casualty Co. v. Hobbs, 152 Kan. 815, 107 P. 2d 715; Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, 114 P. 2d 871; Equitable Life Assurance Society v. Hobbs, 155 Kan. 534, 127 P. 2d 477, and State, ex rel., v. Hobbs, 158 Kan. 320, 147 P. 2d 721.) In some of these cases the court had occasion to quote from Phoenix Ins. Co. v. Welch, supra, and reaffirmed the purpose and validity of the statute.
These fees and taxes were used only to support the insurance department (Laws 1871, ch. 93, §17), but that was soon changed (Laws 1875, ch. 112, § 3), and now they are turned into the state’s general revenue fund. The insurance department is maintained by appropriation from the general fund. The amount has increased irregularly from less than $6,000 for 1871 to $1,480,884.68 in 1943 (74th Annual Report of the Commissioner of Insurance, p. 19), of which amount $1,210,709.17 was premium taxes. For many years these receipts have been and still are a substantial source of income for the conduct of the state’s business. Most other states have similar laws, some older than ours, and have used the fees and taxes collected much as we have used those collected in this state. Under these statutes the gross premium taxes on insurance companies yielded to the states approximately $123,000,000 in 1943 (State Tax Collection of 1943, published by Bureau of Census). These state laws for the collection of fees and taxes from insurance companies consistently have been held valid by the state and federal courts for almost one hundred years. This is conceded by plaintffs. The validity of none of them was specifically involved or held invalid by the Supreme Court in U. S. v. Underwriters Assn., supra.
Our firemen’s relief-fund statute was first enacted in 1895 (Laws 1895, ch. 363), embodied in our insurance code of 1927 (Laws 1927, ch. 231), and amended in 1941 (Laws 1941, ch. 257), and appears now as G. S. 1935, 40-1701 and G. S. 1943 Supp. 40-1702 to 40-1707. Shortly stated, it requires fire insurance companies organized under the laws of any other state or country authorized to do business in this state and doing business in an incorporated city or township maintaining a fire department to pay an annual tax of $2 upon $100 of its premiums to be used for a disability and pension fund for firemen disabled in the performance of their duties. Its purpose was to aid municipalities in providing a more stable and experienced personnel for their fire departments, and thus lessen the loss from fire in congested areas. This plan of increasing the efficiency of the fire departments of municipalities has proved effective and beneficial to insurers. Its validity has never heretofore been questioned. The amount of tax collected under these statutes during the year 1943 was $94,592.34. This was disbursed by defendant to the municipalities where it had been collected. (74th Annual Report of Commissioner of Insurance, pp. 15-17.)
The principal contention of counsel for plaintiffs is that the effect of the decision in the case of U. S. v. Underwriters Assn., supra, is to render void all of our statutes involved herein prescribing fees and taxes to be paid by foreign insurance companies. While differently worded in the briefs, it is succinctly stated in the brief in case No. 36,445, where, after referring to our statutes and similar statutes of other states and decisions of courts thereon, it is said:
“The list of state and Federal eases sustaining the state in the exercise of these powers is long and almost unbroken. All that line of decisions is now obsolete. It is past history. It need not be hashed over. It is now settled beyond further argument that the insurance business is commerce and if conducted in two or more states by a company, that company is engaged in interstate commerce.”
We think the point is not well taken. The opinion of the court upon which plaintiffs rely does not sustain that view. It specifically refers to the contention sometimes made that if any aspect of the business of insurance be treated as interstate commerce, then all control over it is taken from the states and the legislative regulations which this court has heretofore sustained must be declared invalid, and says: “Accepted without qualification, that broad statement is inconsistent with many decisions of this court,” citing Crutcher v. Kentucky, 141 U. S. 47, 11 S. Ct. 851, 35 L. Ed. 649; Atlantic Refining Co. v. Virginia, 302 U. S. 22, 58 S. Ct. 75, 82 L. Ed. 24; and McGoldrick v. Berwind White Co., 309 U. S. 33, 60 S. Ct. 388, 84 L. Ed. 565, which cases cite many other authorities to the same effect.
The opinion continues:
“It is settled that, for Constitutional purposes, certain activities of a business may be intrastate and therefore subject to state control, while other activities of the same business may be interstate and therefore subject to federal regulation. .... In marking out these activities the primary test applied by the Court is not the mechanical one of whether the particular activity affected by the state regulation is part of interstate commerce, but rather whether, in each case, the competing demands of the state and national interests involved can be accomodated (citing authorities). And the fact that particular phases of an interstate business or activhy have long been regulated or taxed by states has been recognized as a strong reason why, in the continued absence of conflicting Congressional action, the state regulatory and tax laws should be declared valid.” (Citing authorities.) (p. 548.)
And later in the opinion it was said:
“The argument that the Sherman Act necessarily invalidates many state laws regulating insurance we regard as exaggerated.” (p. 562.)
We note, also, that the court did not overrule Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357, and other cases commented upon in the opinion or cited in the note thereto, which sustained state statutes regulating or taxing insurance companies. The court criticized a reason given by the court (in some instances, at least, not necessary to the decision) to the effect that insurance is not commerce, and it specifically distinguished those cases from the case then before the court.
The court pointed out that none of those cases “involved an act of congress which required the court to decide the issue whether the commerce clause grants to congress the power to regulate insurance transactions stretching across state lines,” and said: “Today for the first time in the history of the court that issue is squarely presented and must be decided.”
We have no adverse criticism of the opinion of the court in U. S. v. Underwriters Assn., supra; we seek only to understand it. We have no difficulty in understanding it unless we center our minds upon inferences possible to be drawn from the decision rather than upon the decision itself. We think counsel for plaintiffs have predicated these actions upon the inference they have drawn from the opinion that the court, having held insurance is commerce, it necessarily follows, that our state laws in question are invalid. As we have seen, the court in its opinion specifically negatived that view. It did not pass upon the validity of any state law regulating or taxing insurance companies.
In the opinion in U. S. v. Underwriters Assn., supra, it was said the record before the court “presents two questions and no others: (1) Was the Sherman Act intended to prohibit conduct of fire insurance companies which restrains or monopolizes the interstate fire insurance trade? (2) If so, do fire insurance transactions which stretch across state lines constitute 'Commerce among the several States’ so as to make them subject to regulation by Congress under the Commerce Clause?” (Italics supplied.) • We are not concerned with the first of these questions, but note that it appears to have been the one upon which the members of the court were divided. We emphasize two phrases in the above quotation, for they seem to make it clear that the court limited the matters determined by its opinion to two, and that the second one was further limited to “insurance transactions which stretch across state lines.” In short, the court-was not attempting to determine anything with reference to the regulation or taxation of insurance companies by a state. Neither was it attempting to decide anything about the business of insurance conducted within a state. Plaintiffs stress the language of the opinion respecting local transactions as being part “of a chain of events.” This was used in describing the charge of the indictment; and further to point out that if so, that would not destroy the interstate character of the business then being considered by the court. We find no justification for plaintiffs’ conclusions to the effect that the court held all of the local business of insurance, considered alone, to be interstate business. No such claim had been made by the defendant in the court below. “There was not even a demurrer on that ground.” The trial court treated all of the business of insurance as not being commerce and concluded that transactions across state lines could not be interstate commerce. The supreme court, reversing that decision, limited the question upon which it passed to “insurance transactions which stretch across state lines.” As herein-before pointed out, the court regarded it as settled that “for Constitutional purposes, certain activities of a business may be intrastate and therefore subj ect to state control, while other activities of the same business may be interstate and therefore subject to federal regulation.” The opinion of the court dealt only with the interstate character of the business.
The insurance business, considered as a whole, fits itself into the ■ last quotation made. The agreed facts in these cases clearly demonstrate this. Each company is organized in some state other than Kansas, where it has its general officers, who outline the plan for conducting the company’s business, appoint agents and other representatives, who make reports to the head office. These are “insurance transactions which stretch across state lines” and constitute activities among the states subj ect to federal regulation. The agreed facts show many other transactions of the insurance business transacted within the state properly classified as intrastate in character and subject to state control. We shall not repeat these at length here since they are embodied in detail in the agreed facts. It is sufficient here to say that in the fire, indemnity, casualty and surety-ship lines of insurance the insurance is not only solicited by agents in the state, but that the policies are actually written up, executed and delivered in this state both upon written and oral applications, and in some instances the agents are authorized to make oral agreements of insurance binding upon their respective companies. In life and other forms of insurance made only upon written application' — usually but not always with medical examination, and where plaintiffs at the home offices check those applications and medical examinations and approve them and prepare and sign insurance contracts — the same are not effective until actually delivered in Kansas by an agent of the insurer to the insured who has paid the first premium and who is then in good health. More than that, the agents in Kansas service the various types of policies, advise the insured as to his rights thereunder, accept for the insured claims or proofs of loss, which claims are settled by Kansas representatives of the insurer. Plaintiffs seek certificates of authority to do business in this state. Under such certificates, previously granted, plaintiffs have appointed many agents in this state, in some instances with state and district offices, and over the years have built up a large and prosperous business within the state of Kansas. This is the type of business for which they seek a state certificate of authority. It is alleged in one of the petitions that the business of insurance is highly competitive. The competition is in the getting of the business. The financial purpose involved is to get premiums, which are the basic source of plaintiffs’ income. Without the intrastate activities of plaintiffs and the premiums arising therefrom their interstate business would be nominal. Plaintiffs are not seeking to do only an interstate business, and if so, perhaps they would not need any certificate of authority from this state. Plaintiffs are not content to confine their business to transactions which move across state lines; they desire to enter the highly competitive field of writing insurance in this state, the field from which the money comes which is the original and principal source of plaintiffs’ income.
When each of the plaintiffs was admitted to do business in this state it either specifically or in legal effect agreed to be bound by the laws of the state respecting its business. All of the time each of the plaintiffs-,has transacted business in Kansas the state has had in effect a number of laws regulating and taxing insurance companies,which have been modified from time to time as occasion seemed to demand. (See G. S. 1935 and G. S. 1943 Supp., ch. 40.) These statutes cover a wide field and pertain not only to the form of corporate organizations; to the regulation of their investments and other matters pertaining to their solvency; the kind and form of the policies which they may issue; provisions pertaining to the duties and liabilities of their agents; the settlement and payment of losses; the provision for their taxation, but generally provide for the regulation and taxation of insurers transacting a state business in this state. The fact that*the state does these things is strongly stressed by insurers in selling policies to our citizens and securing premiums from them.
It is well settled that the insurance business is a quasi-public business and that it is so impressed with the public interest that a state, under its police powers and under its general powers to regulate corporations generally, both domestic and foreign, in the interest of the welfare of its citizens may enact and enforce laws of the kind above referred to. (See 44 C. J. S. 518 and 557; 29 Am. Jur. 59, 70, and authorities there cited.)
Plaintiffs argue in effect that all of these statutes are rendered nugatory, or at least they are thrown into such confusion that no one can tell anything about them, by the decision of the Supreme Court in U. S. v. Underwriters Assn., supra. We cannot sustain that view. As previously pointed out, the court, in the opinion relied upon, clearly stated the specific questions, and the only questions presented by the record in the case before it. Plaintiffs do not contend that the specific questions stated in the court’s opinion, and decided by it, name state statutes such as ours as being void, but argue that the invalidity of our state statutes follows as a necessary result of what the court decided. This point is not well taken. It is our view that if and when the Supreme Court of the United States deems it is justified upon the record before it to hold that all the state regulatory and taxing statutes pertaining to insurance companies are invalid it will do so, not by implication only but in language so clear that inferences will not have to be relied upon to determine its meaning, and in a case in which the validity of such a state statute is involved.
Since plaintiffs predicate these proceedings upon their view that the inferences to be derived from the decision of the Supreme Court in U. S. v. Underwriters Assn., supra, and since we do not sustain their view that such inferences render our statutes void, the basic premise upon which they rely fails.
Plaintiffs argue that the taxes required by our state statutes in question impose a direct burden upon plaintiffs’ interstate business in violation of the commerce clause (art. 1, § 8, clause 3) of the United States Constitution. We think the following analysis will make it clear that the point is not well taken: (1) While the taxes are referred to as premium taxes, they are not taxes directly upon premiums. Defendant does not handle the premiums and has nothing to do with the money paid as prefiiiums on the policies. The premiums collected in a year are made the basis for defendant to óompute the amount of plaintiffs’ taxes for having done business in this state within the year in question. It is not seriously contended «that there is anything wrong with this method of computing the taxes.
(2) The amount of these taxes is but little if any burden upon plaintiffs. Under our statute (G. S. 1935, 40-913) defendant is authorized to fix the rate of premiums on fire insurance. In Aetna Ins. Co. v. Travis, 121 Kan. 802, 257 Pac. 337, where the validity of an order of the insurance commissioner fixing premium rates on fire insurance was questioned, the abstracts and briefs clearly show that in fixing the rates the insurance commissioner took into account all expenses of the insurance companies, including the premium tax on fire policies. Our statutes do not authorize defendant to fix premium rates on life insurance policies, the theory being that competition in that field will keep the rates reasonable. However, we think we are justified in assuming that the directors and managing officials of each life insurance company, in determining its premium rates, take into account the premium taxes paid to the state as a part of the expense incident to the conduct of its business. Certainly there is nothing in this record to negative that view. The result is, plaintiffs do not pay a premium tax unless the premium has been collected, and the state permits them to include the expense of that tax in their premiums. If the state, in the exercise of its authority to raise money for state purposes, concludes to exact an indirect tax upon the holders of insurance policies, to be paid by them with their other premiums upon their policies, and as measured by such payment to exact a tax upon the insurance company for its privilege of obtaining and servicing and settling such policies in this state in harmony with its laws, we see no reason why that cannot be done. There is no contention here that such a procedure is invalid. There is no burden at all upon the insurance companies other than such clerical work as might be incident to the transaction, most if not all of which would be done in any event. Hence, there is no real basis here for saying that the so-called premium taxes upon these policies is a burden at all upon plaintiffs.
(3) The tax is not levied upon insurance transactions which cross state lines; it is measured only on the basis of business transacted in this state. It is in no sense a tax upon plaintiffs’ business transactions which move across state lines.
Plaintiffs contend the tax in question is void because of discrimination between foreign and domestic insurance companies. It is true that domestic insurance companies are taxed on a different basis. They are not required to pay a tax measured by their premiums, but they are required to pay a capital stock tax (G. S. 1935, 79-310) and a tax upon the net value of their assets (G. S. 1935, 79-324 or 79-1201). All insurance companies pay an ad valorem tax upon their real estate and tangible personal property and certain admission fees and annual fees other than the tax in question, provided for by G. S. 1935, 40-252. In form this appears equal, but in fact it is not, for domestic companies have a relatively larger amount of tangible property in this state than foreign companies; many of them have none. The fact that the tax on domestic companies is upon a different basis than that upon foreign companies does not of itself render the tax invalid. (Lincoln Nat. Life Ins. Co. v. Reed, 325 U. S. 673, 65 S. Ct. 1220, 89 L. Ed. 1861.) We are unable to find in the record evidence to support the view that the tax in question upon foreign insurance companies is greater than that levied on the home insurance companies. More than that, the counter ab stract of the defendant clearly demonstrates that the foreign insurance companies have not been handicapped in transacting their state business in Kansas by reason of any differences in the method of taxation.
Plaintiffs argue that the tax is grossly excessive. That is based upon the view that it greatly exceeds the amount appropriated by the state for the maintenance of its insurance department. We do not regard that as the test. As we have seen, originally the tax was intended only for the support of the state insurance department, but that plan was soon dropped and the tax on foreign insurance companies is simply a part of the state’s system of taxation, as herein-before pointed out. We see no merit in this contention. The agents’ license fees were paid without protest by some of the plaintiffs and objected to by others, but in their briefs they have presented no specific reason why those fees are invalid. We find nothing in the record which would justify us in holding them invalid.
Plaintiffs contend that congress exceeded its powers by the passage of Public Law No. 15 (79th Congress, first session) set out in note 2. When we consider the eminent statesmen who framed this measure and urged its adoption we would concur in that view with great reluctance, if at all. It is argued that congress by this act could not validate invalid state laws. We agree with that contention and do not know of anyone who takes the opposite view. As we read it, congress did not attempt to do anything of the kind, but acted in its own sphere of. authority. Under the constitution (art. 1, § 8, cl. 3) congress is given power “to regulate commerce . . . among the several states . . .” Congress was acting under that power. Perhaps it was prompted to pass the act because of the decision of the Supreme Court in U. S. v. Underwriters Assn., supra, and because of suggestions made in the dissenting opinion of dire results which might follow from the opinion, which suggestions, as we read the opinion, were characterized therein as exaggerated. The pertinent portion of this statute reads:
“That the Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.
“Sec. 2. (a) The business of insurance, and every person engaged .therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
“(b) No Act of Congress shall be construed to invalidate, impair, or super sede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: . .
No restatement by us could make clearer the intent of congress than the language used in the act. In these cases it is stipulated that congress has passed no other act relating to insurance that is applicable in the cases before us.
It is specifically conceded by counsel for some of the plaintiffs, and the view is acted upon by others, that our statutes in question were valid prior to the decision in the case of U. S. v. Underwriters Assn., supra. Plaintiffs’ contention is that that decision rendered our statutes void, but by the analysis we have hereinbefore made of that decision this contention cannot be sustained. The result is our statutes are still valid and congress, by Public Law No. 15, supra, has left the matter of regulation and taxation of insurance companies to the states.
Finally we note that these are mandamus proceedings in which the court has the measure of discretion. The amounts of the premium taxes assessed by defendant were collected by plaintiffs from their policyholders in 1944 under the specific authority or acquiescence of the state. They make no tender to pay it back to them. It was due and payable to the defendant on May 1, 1945. To permit plaintiffs to retain the amount of these taxes would amount to an unjust enrichment of them. We find no equitable reason why it should not be paid. Defendant is an executive officer, the head of a state department, whose duties are prescribed by law. Under our statute (G. S. 1935, 60-1701) mandamus lies to compel the performance of any act which the law specifically enjoins as a duty resulting from an office. Here we are asked to make an order compelling defendant not to do an act required by statute, but to do an act contrary to our statute. We could do this only in the event we found our statutes in question to be absolutely void. We are unable to so find. Legislative acts are presumed valid. Courts set them aside only when their invalidity is clear. One who attacks them has the burden of establishing their invalidity. Here plaintiffs have not sustained that burden. The result is the writs prayed for should be denied. It is so ordered.
The following insurance companies have intervened in some one of the'cases and stipulated to abide the result: World Fire and Marine Insurance Company, Standard Insurance Company of New York, Standard Surety and Casualty Company of New York, The Hawkeye Casualty Company, The. American Fire Insurance Company, and The Gulf Insurance Company. Each of them complains of the premium tax and agents’ license fees under G. S. 1935, 40-252, and those affected thereby complain of the premium tax under G. S. 1935, 40-253, and of the firemen’s relief fund tax under G. S. 1935, 40-1701, G. S. 1943 Supp. 40-1702 and 40-1703.
A total of 22 insurance companies, by the proceedings brought or by intervening therein, have complained of the statutes in question and the taxes and fees provided for therein, while 457 other insurance companies, each organized under the laws of some state or country other than Kansas and heretofore admitted to do business in this state and assessed with the taxes upon their 1944 insurance business in Kansas and the fees provided for in the. statutes in question, have paid such premium taxes, aggregating $1,142,996.49, and fees without protest and have received their respective certificates of authority to do business in this state for the year from May 1,1945, to May 1, 1946.
Note 2.
“[Public Law 15 — 79th Congress]
[Chapter 20 — 1st Session]
[S 340]
An Act
"To express the intent of the Congress with reference to the regulation of the business of insurance
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States. ,
“Sec. 2. (a) The business of insurance, and every person engaged therein, ■'shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
“(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of -regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after January 1, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission. Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State law.
"Sec. 3. (a) Until January 1, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, and the Act of June 19, 1936, known as the Robinson-Patman Anti-discrimination Act, shall not apply to the business of insurance or to acts in the conduct thereof.
“(b) Nothing contained in this Act shall render the said Sherman Act inapplicable to any agreement to bojmott, coerce, or intimidate, or act of bojmott, coercion, or intimidation.
“Sec. 4. Nothing contained in this Act shall be construed to affect in any manner the application to the business of insurance of the Act of July 5, 1935, as amended, known as the National Labor Relations Act, or the Act of June 25, 1938, as amended, known as the Fair Labor Standards Act of 1938, or the Act of June 5, 1920, known as the Merchant Marine Act, 1920.
“Sec. 5. As used in this Act, the term ‘State’ includes the several States, Alaska, Hawaii, Puerto Rico, and the District of Columbia.
“Sec. 6. If any provision of this Act, or the application of such provision to any person or circumstances, shall be held invalid, the remainder of the Act, and the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected.
“Approved March 9, 1945.” | [
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The opinion of the court was delivered by
Smith, J.:
These three actions involve the same general state of facts and were consolidated in the court below. They are brought on the relation of the county attorney of Jefferson county, against the officers of Stonehouse Drainage District No. 1 of Jefferson county and the surety companies which were on the bond of the treasurer of the district and in each case the payee of a warrant paid by the county treasurer of Jefferson county that had been drawn on the special improvement fund of the drainage district by the officers of the drainage district. The plaintiff prevailed in each of the cases. All of the defendants have appealed. To avoid useless repetition reference will be made to the allegations in Case No. 36,334, wherein the state seeks to recover from Lawrence Richardson, an attorney at Topeka, and the other defendants, the amount paid him on a warrant drawn on the “special improvement fund” of the district for legal services.
After the formal allegations, the petition alleged that the drainage district had deposited with the county treasurer of Jefferson county the proceeds of the sale of bonds, which fund was designated as “special improvement fund” and that the officers of the district unlawfully issued to Richardson a warrant on this fund in the sum of $1,000, which was presented to and paid by the county treasurer of Jefferson county; that it was the duty of these officers to pay out of the general fund under the provisions of G. S. 1935, 24-428; that no part of the proceeds derived from the sale of bonds could be lawfully used for any other purpose than the payment of costs of special improvements, for which the bonds were issued; that the direction by the officers to pay and the payment of attorney fees to Richardson by the county treasurer out of the “special improvement fund” violated the provisions of that section and was without authority and unlawful and that this’ $1,000 thus unlawfully obtained by Richardson should be repaid to the county treasurer, together with interest, from the date of payment for the benefit of the special improvement fund. The petition then alleged the official capacity in which Sturm, Baker and Hoekstra had acted as officers and members of the board of directors of the district; that demand had been made upon all the defendants for repayment of the money unlawfully paid to Richardson and that they failed to pay it; that the action was brought in the name of the State of Kansas on the relation of the county attorney for the benefit of the drainage district.
The defendants filed separate demurrers to the petition in each one of these actions. The first ground was that the plaintiff had no legal capacity to sue. The second that the petition did not state a cause of action. Those demurrers were overruled. On appeal we affirmed the judgment of the district court. See State, ex rel., v. Baker, 156 Kan. 439, 134 P. 2d 386.
When the case again reached the district court the case was finally submitted and judgment entered for the plaintiff against all the defendants with the proviso that if the surety companies were compelled to pay any part of the judgment they should be subrogated to the rights of the plaintiff against the other defendants in the amount each company might be compelled to pay. All the defendants have appealed from that judgment.
The defendants each filed a motion to make R. W. Edmonds, former county treasurer, the American Surety Company his bondsmen, and the Stonehouse Drainage District No. 1 parties defendant. The motion pleaded that Edmonds had been the county treasurer at the time the warrants were paid and that it was his fault that they were paid out of the bond fund and on that account he and his bondsmen were liable to the plaintiff; that the Stonehouse Drainage District should be made a party because the defendants, Baker, Sturm and Ho.ekstra were its officers and the acts complained of in the petition were done by them as officers; that the warrant referred to in the plaintiff’s petition was for legal services rendered by the defendant named as payee,and the payment of this warrant out of the special improvement or bond fund was in payment of a debt due him on account of services rendered in good faith and the payment of it out of the bond fund served to enrich the general fund and to prevent circuity of litigation it was important that all of: these parties be named parties defendant so that all matters involved might be litigated in one suit. These motions were overruled in each of these cases and as to all defendants.
Thereupon the Maryland Casualty Company answered admitting the formal allegations and alleging that the final act of mis application of funds by payment out of the special improvement fund was the act of the county treasurer and on that account he was liable for the payment out of the bond fund; that the violation of the law for which defendant Baker was liable was that he failed to account for and pay to his successor the amount of the warrant, which was paid out of the special bond fund instead of the general fund; and that Baker did not convert any of the funds belonging to the district but did, however, turn over to his successor the total sum, representing all of the moneys which came into his hands less those which were actually due from the payees of the various warrants issued; that the district had not suffered any loss by reason of the issuance and payment of the warrants. The answer then alleged that the warrant paid to Richardson was for good and valuable consideration and in estimating the amount that would be necessary to make the proposed improvements the board acting in good faith included this and other items for legal and engineering services, believing that each of them was properly included in the estimated cost of the work; that when the warrant for $1,000 was issued and presented to the county treasurer the question of the propriety of paying it out of the special improvement fund was raised and the matter of payment was delayed until it could be submitted to the attorney general; that it was so presented and paid upon his advice. The answer then contained the following allegations and prayer:
“By reagon of the premises the said warrant was properly paid out of the special improvement or bond fund and no judgment should be entered against defendants herein. The issuance of said warrant and payment thereof was the joint act of the defendants Sturm, Hoekstra, Baker and Richardson and the county treasurer. If judgment be entered against any it should be against all of them. If by reason of its suretyship this defendant be compelled to pay any or all of such judgment it should be subrogated to the rights of the plaintiff against said defendants and each of them and against the Stonehouse Drainage District for services rendered by said Richardson to it. If and when the amount of this warrant has been repaid to the bond fund the District should then be ordered by the court to pay said amount into the general fund and warrant issued upon that fund to pay said amount to the person entitled thereto.
“Wherefore, this answering defendant prays that it may be hence dismissed with its costs, or in the alternative, that if judgment be entered against it by reason of having signed the bond of Ralph Baker as treasurer, it be subrogated to the rights of the plaintiff herein to recover by way of subrogation against its co-defendants, Ralph Baker, Kathryn Hoekstra, E. J. Sturm, Lawrence Richardson and The Stonehouse Drainage District, the county treasurer and his bondsman; that an order be issued to the Stonehouse Drainage Dis trict directing that if and when the amount of said warrant has been paid into said special improvement fund a like amount be paid from said fund into the general fund and á warrant for said amount be thereupon drawn upon said fund in favor of the person who has paid said amount into said special improvement fund.”
The answer of the Central Surety and Insurance Corporation was substantially the same.
Lawrence Richardson answered admitting the issuance of the warrant. He alleged he was an attorney and that the warrant was paid for professional services rendered by him to the drainage district and represented the fair and reasonable value thereof. The answer also alleged that in the event he be held liable, to the plaintiff he should be allowed by way of set-off the sum of $1,000 for professional services rendered. His prayer was for costs.
Ralph Baker answered admitting his membership on the board and issuance of the warrant. His answer also alleged that he, Sturm and Hoekstra obtained the advice of their attorney as to the legality of the payment of the warrant from the special improvement fund and were advised that it was legal; that they also obtained the opinion of the attorney general, a copy of which was attached to the answer, and he advised them that it was legal for them to make the payments out of the special fund. The answer further alleged that all of the acts of Baker, Hoekstra and Sturm were done in good faith. The prayer was for costs.
Sturm and Hoekstra answered to about the same effect.
In the other two cases the common defendants made approximately the same answers and so also did the payees of the warrants in each case. The case was tried and the parties entered into a stipulation of the facts as follows:
“1. All of the allegations set out in the respective petitions which are admitted by the respective answers of the defendants, the same as though set out herein.
“2. The plaintiff has made demand upon the defendants and each and all of them for repayment to the County Treasurer of Jefferson County, Kansas, of the amounts represented by the several warrants for the benefit of Stonehouse Drainage District. The defendants have failed, neglected and refused to pay the same, or any part thereof.
“3. Each and all of the warrants sued on herein were issued and paid in good faith out of the bond fund, for good and valuable consideration, for services which were in fact rendered by each of the respective payees for the benefit of the Stonehouse Drainage District in respect to the proposed improvements and issuance of bonds which were submitted to the taxpayers of said District and approved by them as provided by the statutes.
“4. In considering the matter of and in estimating the amount that would be necessary to make the proposed improvements and the amount of taxes and bonds required to be paid by them, the Board, acting in good faith included the attorneys’ fees in the sum of $1,000.00, engineering fees and other items, including $1,100 to H. L. Watchous, $705.50 to H. L. Watchous, $228.50 and $86.00 to O. J. Eidmann, for each and all of which amounts the respective parties rendered services, and the amounts charged were fair and reasonable and approved by the Board of Stonehouse Drainage District.
“5. Said amounts as above stated were actually included in the estimate of costs and were a part of the total amount for which taxes were paid and bonds issued for the payment of said proposed improvements, and were a part of the money which was actually raised by the payment of taxes and the sale of bonds so authorized by a vote of the voters, and became a part of the fund known as Special Improvement Fund or Bond Fund.
"6. When said warrant for $1,000.00 was issued and presented to the county treasurer for payment, the question of the propriety of paying the same out of said Special Improvement Fund was raised and the payment thereof was delayed until the matter could be submitted to the Attorney General of this state. Said matter was thereafter so presented to the Attorney General and upon advice of the Attorney General on or about the 28th day of November, 1939, the said warrant for $1,000.00 was paid by the treasurer out of said Special Improvement or Bond Fund. The Attorney General was told that the above items were included in the estimate of the cost of improvements and in the amount provided for by taxation and bonds. Thereupon he advised the Board as above stated. A copy of the letter of the Attorney General is as follows:
“With further reference to the bills of the engineer and attorney for the Stonehouse Drainage District No. 1, I feel that in view of the items of ‘contingencies’ in the engineer’s revised estimate of May 1*1, 1939, and the board’s resolution of October 23, 1939, the board may pay those bills.
“As stated in our previous correspondence on this matter, I think that your opinion is very well thought out, but that neither your office nor this office at that time was aware of the item hereinbefore mentioned, and that the board actually did contemplate the payment of attorneys’ and engineers’ fees from that item.
“7. The issuance of said warrant and the payment thereof was the joint act of the defendants, Sturm, Hoekstra, Baker, and the County Treasurer.
“8. After the advice of said Attorney General was given and acted upon in respect to said warrant for $1000.00, each and all of the other warrants sued on herein, to-wit: $1100.00 and $705.50 to H. L. Watchous, $228.50 and $86.00 to O. J. Eidmann, were paid pursuant to said advice of the Attorney General.
“9. The bond given by the defendant, Central Surety & Insurance Corporation of Kansas City, Missouri, dated March 1st, 1940, for the sum of $5,000.00 with the defendant, Ralph Baker, as principal, was furnished at the request of said Ralph Baker, and the said Ralph Baker and M. B. Lodge, attorney in fact for the Central Surety & Insurance Corporation would testify that the said Baker applied for a bond for one year, that a premium for only one year was paid for said bond.”
At the trial Ralph Baker was the only witness. He testified that he had been elected director of the district for three years but after he had been elected director he was elected by the other directors as treasurer each year, that is, on March 1, 1938, and on March 1, 1939, but he gave a bond for each of those years and that in giving this bond he attempted to and intended to give only a statutory bond. At the end of this testimony counsel for each of the bonding companies asked the court to reform the bond to conform with the intention of the parties to the effect that it was only a statutory bond and was not intended to be a bond for faithful performance as well as one to account for money. The court did not rule directly upon that motion but said it would be taken under consideration along with other matters.
The court found in favor of the plaintiff against all of the defendants in each of the cases for the amounts for which suit was brought. The judgment was that in the Richardson case the plaintiff recover from the defendants the sum of $1,295, with interest thereon.
The judgment contained the following:
“It is further by the court considered, ordered, adjudged and decreed that the said defendants, the Maryland Casualty Company and Central Surety and Insurance Corporation, be and they are hereby subrogated to the rights of the judgment rendered herein in favor of said plaintiff and against said defendants to the extent and in the respective amount that each company may be compelled to and does pay. to said plaintiff in satisfaction of said judgment, and that execution or executions issue therefor.”
The judgment in the other two cases was to the same general effect.
The defendants filed a motion for a new trial on the ground of erroneous rulings of the court, that the decision was contrary to the evidence, and that judgment should have been entered in favor of the defendants and against the plaintiff. These motions were all overruled. The specifications of error are that the court erred in overruling the motion filed by each of the defendants to make additional parties defendant; in overruling the motion made by each of the surety companies to reform the bond; and in entering judgment for plaintiff and against all the defendants; and in overruling all the motions for a new trial.
The question of the liability of the defendants was settled by the conclusion reached in State, ex rel. v. Baker, supra. Nothing pleaded in the answers or established by the stipulation as to facts changed this liability.
There remains, however, the question of the rights of all the parties to the action as to each other which was raised by the motions and answers and dealt with in the stipulation as to the facts.
The district was organized under G. S. 1935, 24-401, and following sections. G. S. 1935, 24-407 sets out the powers of the district. The eleventh subdivision of that section reads as .follows:
“To annually levy and collect a general tax not exceeding five mills on the dollar on all taxable property within the district, to create a general fund.”
The twelfth and thirteenth subdivisions of the section provide as follows:
“To levy assessments and special taxes, if deemed expedient by the directors, upon all of the real estate in the district that may be benefited, to defray the costs of the construction and maintenance of levees .or other works or improvements to prevent the overflow of natural watercourses, or the drainage of overflowed lands therein, or that may be conducive to the public health, convenience, or welfare.
“To issue negotiable bonds to pay the cost of widening, deepening and otherwise improving the channels and constructing embankments, drains, levees and other works along the banks of natural watercourses, to pay for the purchase or condemnation of land necessary therefor, to prevent overflow and protect the property situated within the district from damage and injury thereby; such bonds to be payable by general taxation of all property within the district when it shall be determined that all property situated within'the district will be benefited thereby or that such work or improvement is necessary, or will be conducive to the public health, convenience or welfare, and beneficial to all the inhabitants of such district: Provided, That no such bonds shall be issued until authorized by a vote of the taxpayers, as hereinafter provided.”
It should be noted that other sections provide for a determination by the board of directors of whether work should be paid for by levying special taxes or by the sale of bonds.
G. S. 1935, 24-428, provides as follows:
“The compensation of the directors, assessors, engineers and attorneys employed by the board of directors shall be paid out of the general fund herein-before authorized.”
It will be seen that the three statutes first quoted above provide, first, for the creation of a general fund by the levy of a general tax of not to exceed five mills on the dollar upon all taxable property in the district, and for the levying of special taxes upon real estate in the district or for the issuance of bonds for the purpose of carrying on the actual work for which the district was created, that is, improving channels, construction of embankments, drains, levees, etc., while the last section quoted provides that the compensation of the directors, assessors, engineers and attorneys employed by the board be paid out of the general fund for which a tax of not to exceed five mills on the dollar might be levied on all taxable property.
As was stated in State, ex rel., v. Baker, this action was brought by the state on the relation of the county attorney because the members of the board of directors of the district had violated the above statute by paying the compensation of the payees in the warrants in question out of a fund designated “special improvement fund,” being proceeds from the sale of certain bonds issued for the construction of alleged improvements in said district. We have the warrants before us now. It appears that it was sometimes referred to as the “special fund,” and sometimes as the “bond fund.”
The statute makes it the duty of the county treasurer of the county in which the district is situated to receive, safely keep and pay out-funds belonging to the district. It also provides that the purchase price of all bonds sold by the board of directors for cash shall be paid directly to the county treasurer and he shall retain them and all taxes, special assessments and other funds received by him until paid out on written orders of the board of directors. (G. S. 1935, 24-415.)
It is clear from the record in this case that the county treasurer did receive the proceeds from the sale of bonds and set up a fund from these proceeds on his records.
The stipulation as to the facts stated that this fund was also augmented by receipts from taxes. Whether this means taxes raised b3¡r means of a general levy on all property in the district, as provided in subdivision 11 of G. S. 1935, 24-407, is not as clear as we would like it to be. However, the stipulation does say that the attorney general was told that the above items were included in the estimate of costs and improvements apd in the amount provided for by taxation and bonds.
The appellants argue that this fund, known as the special improvement fund, was augmented by the payment of taxes and that statement is not disputed by counsel for appellee. At any rate, there was a fund known as a “special improvement” or “bond fund” carried on his record by the county treasurer. The warrants with which we are concerned were paid out of that fund and we held that it was a violation of G. S. 1935, 24-428, to do so. See State, ex rel., v. Baker, supra.
Now as to the equities' in this case. It will be noted that the action was brought by the state on the relation of the county attorney of Jefferson county. This is a form of action resorted to occasionally when it appears that public officials have not performed their duties properly. The leading case on the subject is State, ex rel., v. Bradbury, 123 Kan. 495, 256 Pac. 149. In that case the state on the relation of the attorney general and the county attorney of Labette county brought an action to compel a board of education to sue its members in their own proper person because they had wrongfully expended money belonging to the district. We pointed out the anomalous situation the case created, that is, the prayer really asked that the board members be directed to sue themselves and denied the writ although we had previously held in another action that the money had been wrongfully expended. We pointed out, however, that the relief sought could be had in an action maintained by the state on the relation of the attorney general and county attorney. This sort of action is provided for by G. S. 1935, 19-702. In State ex rel., v. Baker, supra, we again reviewed the authorities and adhered to the views expressed in State, ex rel., v. Bradbury, supra.
The petition in each of these cases alleges that the action is brought for the benefit of the drainage district. It was nowhere al'leged that there was any corruption or bad faith in the payment of money involved, only that it was paid out of the bond fund when it should have been paid out of the general fund.
The stipulation as to the facts states that the warrants were paid in good faith for services rendered and that the amounts charged were fair and reasonable.
The defendants asked that the district be made a party defendant so that all matters involved might be adjudicated in this action. This motion was overruled by the trial court. This motion might well have been sustained. We do not, however, consider that failure of the trial court to sustain it prevents us on appeal from directing a judgment which accords with our idea of equity between all parties concerned. While the Stonehouse district is not an actual party to the case, as we have pointed out, the action is brought for its benefit so for all practical purposes it is here as much as though it had formally been made an actual party.
The trial court gave judgment against all the defendants, that is, the two surety companies, each member of the drainage board and the payee of each separate check. It provided further that if the surety companies were obliged to pay the judgment they were subrogated to the rights of plaintiff against the defendants to the extent that each company might be compelled to pay the judgment. If that judgment as rendered be allowed to stand when the companies pay the judgment and the special bond fund is thereby replenished by the amount of it, the surety companies will be compelled to first seek to recover .the amount which each had paid from the members of the board as they personally are able to pay and finally from the payee of the check.
' The result of this judgment would be that the drainage district would be enriched by the amount of the judgment no matter in what fund it be held and would have received its engineering and legal services free of charge. This is not an equitable result and does not conform to our ideas of justice. It will not do to say that the surety company should pay and then try to recover from the board members or the payees. If they should finally accomplish this end it would be after vexatious litigation and the drainage district still would have received its legal and engineering services free of charge. The provision in the drainage act, G. S. 1935, 24-428, did not contemplate any such a result. The provision providing for a levy of five mills on all taxable property in the district to pay such bills was enacted by the legislature with the idea that such a levy would be made and the bills paid. Subrogation is an equitable doctrine. It is called into play to see that all parties receive equitable consideration. We hold that the judgment in these cases should be modified so as to provide that the Maryland Casualty Company and the Central Surety and Insurance Corporation shall have judgment against the drainage district in the amount each is compelled to pay in satisfaction of the judgment on the bonds. The drainage district is ordered to pay this judgment to the Maryland Casualty Company and the Central Surety and Insurance Corporation out of any funds it may now have in its general fund. If it does not have sufficient funds in its general fund to pay this judgment it is ordered to make a levy of five mills on the dollar on all taxable property in the district until it has raised sufficient money to pay it.
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The opinion of the court was delivered by
Burch, J.;
This case involves construction of waiver of premium and disability benefit provisions in a life insurance policy. The specific question to be decided is whether the conditions set forth in the policy are conditions precedent or subsequent. The action was brought to recover premiums paid on the policy and disability benefits accruing during a period prior to furnishing the insurer with satisfactory evidence of the disability. The trial court sustained a demurrer to the amended petition and the appeal is from such ruling.
The provision'involved as to the waiver of premiums reads as follows:
“If the insured becomes totally and permanently disabled and is thereby prevented from performing any work or conducting any business for compensation or profit, or has met with the irrecoverable loss of the entire sight of both eyes, or the total and permanent loss by removal or disease of the use of both hands or of both feet, or of such loss of one hand and one foot, and satisfactory evidence of such disability is received at the Home Office of the Company, the Company will, if there has been no default in the payment of premiums, waive the payment of all premiums falling due during such disability after the receipt of such proofs.” (Emphasis supplied.)
The disability benefit provision reads as follows:
“If such evidence is received before the end of the endowment term, the Company will pay to the insured the sum of ten dollars for each one thousand dollars of the original insurance and will pay a like amount on the same day of every month thereafter during the lifetime and the continuance of such disability of the insured, the first payment to become due on receipt at said Home Office of proof of such disability.” (Emphasis supplied.)
The amended petition alleges in substance that on December 29, 1941, the plaintiff became totally and permanently disabled; that on or about May 27, 1943, there was furnished to the defendant, on behalf of the plaintiff, sufficient and satisfactory evidence of such disability; that the policy was in the amount of $3,000; that the disability benefits therefor amounted to $30 each month and that the plaintiff was entitled to recover from the defendant the sum of $30 a month for the period from December 29, 1941, to May 27, 1943. The amended petition also alleges that the defendant had been paying the said sum of $30 each month since the date it received satisfactory evidence of disability, to wit, May 27, 1943. In other words, the plaintiff is seeking to recover disability benefits only for a period after the disability occurred but prior to the date any evidence of such disability was furnished to the defendant. The second count of the amended petition seeks to recover the premiums which had been paid in behalf of the plaintiff during the same period hereinbefore referred to. It is admitted by the plaintiff that the defendant insurance company has waived the payment of all premiums since the date it received satisfactory evidence of plaintiff’s disability and that the insurance company is making no claim for the further payment of premiums. The plaintiff alleges, however, that the defendant has refused to repay or return to the plaintiff the amount which it received in the aggregate sum of $174.48 as premiums during the aforesaid period from December 29, 1941, to May 27,1943, and that such amount is due the plaintiff, together with interest at the rate of six percent from the respective dates when the component portions of the total sum were paid to the defendant as premiums.
Counsel for the plaintiff, in a rather exhaustive and well-prepared brief, contend that the furnishing of satisfactory evidence of total and permanent disability, even if it is a condition precedent, also fixes the time of any benefits by the express terms of the policy. They vigorously urge that the policy under consideration, in its fifth paragraph under the subject of “conditions,” provides that all disability benefits are conditioned upon satisfactory evidence being furnished when requested. Such condition clearly refers only to evidence of the continuance of disability. They further contend that if the insurer wished to make notice of such disability a condition precedent to the commencement of disability benefits, it could have done so in plain and simple language; that the provisions in the policy are ambiguous; and that there is nothing in the policy requiring notice except as inferentially included in the phrase “satisfactory evidence.” Counsel for plaintiff also contend that the actual period of total disability — not the date when the defendant becomes informed of such fact — is the controlling factor; that the policy specifically states that the company will “waive the payment of all premiums falling due during such disability” and that the phrase “after the receipt of such proof” refers only to the time when the waiver will be made — not to the time during which the payment of premiums will be waived and during which disability benefits will be paid. In support of such contentions counsel for plaintiff cite many cases from various states and federal decisions but they do not cite any of our decisions except Smith v. Missouri State Life Ins. Co., 134 Kan. 426, 7 P. 2d 65, which they contend is not controlling because the provisions in the policy referred to in the cited case can be distinguished from the policy provisions in the present case in that the benefits in the cited case were limited to a continuance of the disability, whereas in the instant case the provisions are limited by provisions reading: “If the insured becomes . . . disabled.”
The argument is ingenious but it falls short of being convincing. In the present case plaintiff actually is contending that he is entitled to recover benefits during the continuance of his disability rather than during the time the disability continues after the defendant has been served with satisfactory evidence of disability. This opinion would become unduly extended if all of plaintiff’s arguments were to be answered in detail. Perhaps sufficient has been said to demonstrate that serious consideration has been given to the contentions advanced by the plaintiff.
The legal question raised by the appeal is not a new one. Courts all over the country have considered it and there is a conflict of decisions as to whether the conditions referred to in such a policy are conditions precedent or subsequent. From a practical standpoint it is impossible to reconcile consistently the two lines of decisions. Mr. Justice Cardozo, in writing the opinion of the Supreme Court of the United States in the case of Mutual Life Ins. Co. v. Johnson, 293 U. S. 335, 79 L. Ed. 398, reviewed in detail the two diametrically opposed rules on the question as developed by the decisions from various states. Paragraph one of the syllabus in the case last referred to, as reported in 79 L. Ed. 398, reads as follows:
- “A life insurance policy is to be interpreted in accordance with the law of the state in which it was delivered to the insured, there resident.”
The question, therefore, narrows itself to what is the law in Kansas. In the case of Smith v. Missouri State Life Ins. Co., supra, the question was considered and it was held that similar provisions in a policy were conditions precedent. Such case, however, considered only waiver of premium provisions and not disability benefits. Because the rule of construction applied to accident and health policies in some jurisdictions differs materially from that applied to life insurance policies in considering waiver of premium provisions, the question of what the rule might be as to disability benefit provisions remained open in Kansas for some time. However, the question was brought to the consideration of this court in the case of Bott v. Equitable Life Assur. Society, 147 Kan. 671, 78 P. 2d 860. In such case the policy involved contained provisions waiving not only payment of premiums but in addition provisions for monthly benefits upon proof of permanent total disability. It was clearly held in the opinion that proof of such disability constitutes a condition precedent to the waiver of such premiums and to the payment of such benefits, and the first syllabus of the decision so reads. Examination of such opinion has been made for the purpose of determining whether the policy provisions, or any other circumstances in the cited case, differ materially from those in the present case. In the two cases the facts are not the same but nothing in connection with them creates any basis for justifiably distinguishing the present case from the conclusion reached in Bott v. Equitable Life Assur. Society, supra. The two last-cited cases were cited with approval in Bozich v. Metropolitan Life Ins. Co., 155 Kan. 573, 127 P. 2d 499, and the following quotation was therein again emphasized:
“ . . On the one hand the company obligates itself in the event of total disability to carry the insurance without charge to the insured, and on the other hand the insured obligates himself to furnish, while the policy is in force, proof of such disability. The contract is neither unreasonable nor harsh.’ ” (p. 583.)
According to our decisions the provisions in the policy in the present case are not ambiguous and, therefore, rules relative to construction where ambiguity exists do not apply. (See Watkins v. Metropolitan Life Ins. Co., 156 Kan. 27, 131 P. 2d 722; and Movitz v. New York Life Ins. Co., 156 Kan. 285, 133 P. 2d 89.)
We find nothing in the present appeal to justify reversal of our previous decisions. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
Plaintiff brought an action to quiet title to land against persons who claim title to fractional interests in and to the oil and gas and other minerals in place under the land. Defendants prevailed and plaintiff appeals.
The principal question is whether a conveyance of a one-half interest in and to the oil and gas and other minerals in place from the plaintiff Mae Burgin and her husband, Gilbert Burgin, now deceased, to the defendants, Olney D. Newman and E. L. Trock, is void by reason of the grantees’ failure to record the deed within ninety days after its execution or to list it for taxation pursuant to provisions of G. S. 1935, 79-420. The grantees in that conveyance and their wives subsequently executed a one-fourth interest in and to the oil and gas and other minerals in place to the defendant Leland Scrogin. The latter instrument was recorded within ninety days after its execution. The question presented is whether the first mentioned deed is void. If it is void none of the defendants holds any title. If it is valid all defendants hold the title they claim.
In the joint answer of the defendants they alleged facts designed to show that plaintiff and her husband, grantors, did not deliver the deed to the grantees immediately upon its execution, but placed it in a bank with the understanding and agreement it was to be held by the bank until the occurrence of a_ definite future contingency and that it was recorded within ninety days after the occurrence of such contingency. Pursuant to the issues thus joined by the pleadings defendants assumed the burden of proof. Plaintiff’s general demurrer to defendants’ evidence was overruled and plaintiff introduced her evidence. Plaintiff appeals from the adverse ruling on her demurrer and from the judgment rendered in favor of the defendants.
Before narrating essential portions of defendants’ evidence it will be helpful to again state a few fundamental principles governing the ruling on a demurrer to evidence. In determining such a ruling courts do not compare the evidence of witnesses or evidence of the same witness on direct and cross-examination. Only the evidence favorable to the party adducing it is considered. All such evidence is admitted as true and if it together with all inferences reasonably to be drawn therefrom in favor of the parties adducing it tends to establish a cause of action or defense the demurrer must be overruled. (Zumbrun v. City of Osawatomie, 130 Kan. 719, 721, 288 Pac. 584; Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P. 2d 810; In re Estate of Bond, 158 Kan. 776, 781, 782, 150 P. 2d 343.) Applying these principles defendants’ evidence in substance disclosed:
Plaintiff and her husband purchased the land involved from the defendant Newman with the understanding Newman was to retain an equal undivided one-half interest in and to the oil and gas and other minerals in place; in making the deed Newman, however, did not reserve such interest to himself in the deed, but executed and delivered a deed conveying his entire fee; pursuant to agreement plaintiff and her husband made a reconveyance of a one-half interest of the minerals in place to defendant Newman and to the defendant, E. L. Trock; the latter conveyance now in question was executed July 11, 1936; at the time of the transaction the land was subject to a mortgage which constituted a first lien on the entire fee; plaintiff and her husband assumed and agreed to pay the mortgage lien which was due in March, 1937; plaintiff and her husband were unable to pay the mortgage at that time and desired to obtain an extension thereof; they were obliged to arrange with the mortgagee for such extension and were in doubt concerning the manner in which the mortgagee would want the division of the mineral interests handled; Gilbert Burgin conferred personally with the representative of the mortgagee and was soon thereafter advised the mortgage extension agreement could be obtained; the mortgagee however insisted that the mortgage extension agreement be recorded prior to the recording of the mineral deed; the representative of the mortgagee discussed with Gilbert Burgin different methods which might be employed to handle the entire transaction; Gilbert Burgin concluded to adopt the particular method finally employed; that method was to place the mineral deed in escrow in the Coats State Bank where it was to be held until the mortgage extension agreement was consummated and recorded; Gilbert Burgin advised the representative of the mortgagee that was the method they had decided to employ; the deed was executed in the bank and was placed in an escrow box of the bank immediately upon its execution; it remained in the custody, dominion and control of the bank until June, 1937; the defendant Trock, one of the grantees, was an officer of the escrow bank; the Burgins were both present in the bank when the mineral deed was left with the bank; Gilbert Burgin died before the trial.
The cross-examination of Trock by plaintiff’s counsel discloses the following concerning the delivery of the mineral deed to the bank by the plaintiff arid her husband:
“Q. What did you say to her? (Meaning Mrs. Burgin.) A. I was talking to them jointly, both of them together. (Meaning Mr. and Mrs. Burgin.)
“Q. What did you say to Mrs. Burgin, if anything? A. Well, we said several things at that time, but among other things, that I would place that deed in the custody of the bank and that I would not deliver that to Mr. Newman or myself until the renewal of the mortgage had been put on record.”
The mortgage extension agreement was recorded April 8, 1937, and the mineral deed was recorded by the bank June 17,1937, which was soon after the bank learned that the mortgage extension agreement had been recorded; plaintiff had made no complaint that the bank had not handled the transaction in compliance with the agreement; a play for oil began in the vicinity of the land, probably in the latter part of 1943; the instant action was filed.in June, 1944.
Was the demurrer to defendants’ evidence properly overruled? It is conceded the deed in question constituted a severance of minerals in place from surface rights and was therefore of such character as to bring it within the purview of the statute relied upon by plaintiff. (G. S. 1935, 79-420.) Plaintiff contends the deed was delivered to the grantee July 11, 1936, the date of its execution, and that since it was not recorded within ninety days thereof nor listed for taxation before the ensuing March 1, it is void. The pertinent part of the statute reads:
“That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or artificial, and the right or title to any minerals therein is in another or in others, the right to such minerals shall be valued and listed separately from the fee of said land, in separate entries and descriptions, and such land itself and said right to the minerals therein shall be separately taxed to the owners thereof respectively. .. . . : Provided, That when such reserves or leases are not recorded within ninety days after execution, they shall become void if not’ listed for taxation.”
It will be observed the first part of the statute clearly indicates it applies only to circumstances where the fee to the surface of the land is held by a person or persons, natural or artificial, and the right or title to any minerals therein is in another or others. When those circumstances exist the law provides that such interests shall be listed, valued and taxed separately to the owners thereof respectively. Manifestly, however, the mere execution of a mineral deed does not constitute a severance of the surface and mineral rights nor does it create a separation in the ownership of such interests so that they can be listed, valued and taxed separately. Such sever anee of interests and passing of title do not occur until delivery of the instrument to the grantee.
The trial court expressly found it was clearly the intention of the parties that in order to consummate the entire transaction the parties agreed to have the bank hold the mineral deed until plaintiff and her husband obtained and recorded the mortgage extension agreement. In other words, the parties agreed there should be no severance of the surface and mineral rights until the-mortgagee obtained from the Burgins a renewal mortgage on the unsevered and entire fee and recorded it. That agreement constituted a restricted delivery to accomplish the intended purpose. The delivery did not become complete and absolute until the agreement was consummated. That appears to have been the construction all the parties placed upon their agreement. The mortgage extension agreement was recorded April 8, 1937. The mineral deed was held by the bank until that contractual contingency occurred. The deed was recorded in less than ninety days from the date of its intended delivery. It is clear a completed delivery of the mineral deed on July 11, 1936, would have prevented a later execution of a mortgage by plaintiff and her husband upon an unsevered and entire fee. Delivery of the deed on July 11, 1936, would have been contrary to the intent and purpose of the parties. We are not deciding here whether the purpose of the parties might have been effectuated in some other or better manner. All we need to determine is the effect of what was intended and actually done. The court was of the opinion and expressly found the parties were agreed upon their course of conduct and the result to be achieved, they were acting in mutual good faith and that avoidance of taxation was in nowise considered. The finding is significant in that it discloses the court was satisfied defendants’ evidence convincingly met the burden of proof.
Before a deed can operate as a valid transfer of title there must be a delivery thereof. (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; Stump v. Smarsh, 153 Kan. 804, 808, 113 P. 2d 1058.) Delivery is largely a matter of the grantor’s intention to divest himself of title. (Smith v. Dolman, 120 Kan. 283, 285, 243 Pac. 323; Stump v. Smarsh, supra, p. 808; Lowry v. Lowry, ante, p. 11, 14, 159 P. 2d 411.)
It is true that possession by a grantee of a deed absolute in form is prima facie evidence of delivery which can be overthrown only by clear and convincing evidence and that the burden of showing nondelivery is upon the party who questions the delivery. (Rohr v. Alexander, 57 Kan. 381, 46 Pac. 699; Hoard v. Jones, 119 Kan. 138, 237 Pac. 888; Lowry v. Lowry, supra, p. 13.)
This action was tried to the court without a jury. Defendants assumed the burden of showing the mineral deed was not delivered on the date of its execution, July 11, 1936. There was ample testimony upon which the court, the trier of the facts, could find, and did find, that it clearly appeared the deed was placed in the possession of the bank with the understanding such possession was to be retained and that the deed was not to be delivered to the grantees therein named until the mortgage extension agreement was obtained and recorded. Under those circumstances that finding is conclusive on appeal.
Defendants’ evidence sufficiently met the burden of proof to withstand the demurrer. A part of plaintiff’s own evidence tended to corroborate the finding that the bank was to hold the mineral deed until the mortgage matter was settled. It is true a part of plaintiff’s evidence tended to establish a delivery of the deed on July 11, 1936. It was the province of the trial court to resolve any conflict in the evidence. Upon a consideration of the entire record we are satisfied the judgment cannot be disturbed. In reaching that conclusion we are not unmindful of mineral deed cases cited by counsel for plaintiff which he thinks require a reversal of the judgment. (Richards v. Shearer, 145 Kan. 88, 64 P. 2d 56; Davis v. Skelly, 159 Kan. 282, 154 P. 2d 114.) We find nothing in those cases concerning an interpretation of G. S. 1935, 79-420, which requires or justifies a reversal of the judgment in the instant case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action against the maker and the payee, endorser, of a promissory note. The endorser defaulted and judgment was rendered against him. The trial was by jury on issues joined by the holders of the note and the maker. Judgment was for defendant and plaintiffs appeal.
The plaintiffs were J. H. Kerby and Warren H. Kerby, doing business as The K-M Securities Company of Clay Center, Kan. The defendant was a farmer and resided approximately twenty-five miles from Clay Center.
The appeal is from the order overruling plaintiffs’ demurrer to defendant’s evidence and from orders overruling motions for judgment notwithstanding the general verdict; to set aside certain special findings of fact; and for a new trial.
The only pleaded defenses which we need notice presently, in view of the evidence before us, were (1) the execution of the note was induced by fraud; (2) the note was without consideration; (3) there was a fraudulent conspiracy between plaintiffs and the endorser; and (4) plaintiffs were not otherwise holders in due course.
Appellee’s evidence sufficiently established, to withstand a general demurrer, that the note was procured by the payee through false and fraudulent representations and without consideration. Appellants do not now seriously contend otherwise. With the fraudulent procurement of the note established, the statute, G. S. 1935, 52-509, placed the burden on appellants to show they were holders in due course. (G. S. 1935, 52-509; Pioneer Trust Co. v. Combs, 117 Kan. 89, 90, 230 Pac. 302; United Finance Plan v. Meier, 147 Kan. 688, 78 P. 2d 904, and cases therein cited.)
Appellants’ evidence, in substance, disclosed:
They operated their business at Clay Center; the note was executed October 13, 1943, for the principal sum of $2,500, and was payable in ninety days at eight percent interest; appellants purchased the note from the payee, D. J. Briggs, October 15, 1943; they first learned of the note when Joe Haynes, formerly a banker at Clinton, called J. H. Kerby by telephone from Clinton a day or two before the purchase; Haynes advised a man by the name of D. J. Briggs held the note, that the note was negotiable and that he (Haynes) would buy the note if he had available funds; on October 15 Briggs appeared at the office of appellants with the note; J. H. Kerby did not immediately purchase the note; he did not know what the consideration for the note was; he made inquiry of Briggs, but Briggs did not tell him very much; he called Haynes by telephone at Clinton, described the note and the holder whom Haynes identified as the man whom he had previously mentioned to Kerby; J. H. Kerby was personally acquainted with the maker, John Bott, by reason of previous banking negotiations he had with Bott while he, Kerby, was an officer in a bank at Clay Center; he knew Bott as a successful farmer and believed he would pay any note he signed ; he knew Bott lived only twenty-five miles from Clay Center and he had been on Bott’s farm some years previously; he did not inquire of Bott concerning the consideration or validity of the note; he knew little concerning Briggs, the payee and endorser; he knew nothing of Briggs’ financial responsibility but thought he owned some land near Clyde; he purchased the note on the strength of Haynes’ recommendation and his knowledge of Bott; he bought the $2,500 note, bearing interest at eight percent, for $2,200, that is, at a $300 discount not including $50 interest due at maturity; he did not pay the entire $2,200 to Briggs but, at the request of Briggs, paid Briggs $2,150 and paid the remainder of the consideration, namely $50, to Haynes, who had recommended the note; the usual rate of discount in that vicinity was ten percent or more; on the date of purchase appellants advised appellee by mail they were the owners of the note and that payment, when due, should be made at their office; appellants also wrote appellee a number of letters later and advised the note was due, and requested payment thereof; appellee made no reply to any of the letters.
Appellee’s evidence disclosed Bott lived only seven miles north and one and one-half miles east of Clinton.
Were appellants holders in due course? G. S. 1935, 52-506 reads:
“To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”
G. S. 1935, 52-502 reads:
“A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”
Appellants met requirements (1) and (2) of the last quoted statute. Did they meet the burden bf proof with respect to requirements (3) and (4) ? Appellee contends only the jury could decide that question under the evidence in this case. Appellants agree that whether evidence is sufficient to meet requirements (3) and (4) is ordinarily a question for the jury but they contend there is an exception to that general rule and that their evidence brings them within the exception. Relative to the exception to the general rule they rely on what was said in Pioneer Trust Co. v. Combs, supra, as follows:
“Where because of fraud in the inception of a note the plaintiff has the burden of proving that he is a holder in due course, the question whether he has met the requirement is ordinarily one for the jury. (Trust Co. v. Gill, 113 Kan. 261, 270, 214 Pac. 413.) There is, however, an exception to this general rule, recognized by this and many other courts, which has been thus expressed: ‘unless that evidence is so clear and unequivocal as to leave no room for difference of opinion among fair-minded men.’ (Beachey v. Jones, 108 Kan. 236, 195 Pac. 184.) That situation arises where the plaintiff accounts for his good-faith ownership by evidence which is not intrinsically improbable, and is not contradicted or impeached by, or inconsistent with, other, evidence or inferences fairly to be drawn therefrom.” (p. 90.)
Was appellants’ own evidence when considered in its entirety so clear and unequivocal that it, together with inferences fairly to be drawn therefrom, would leave no room for difference of opinion among fair-minded men? In the Pioneer Trust Co. case, supra, all the evidence of plaintiff was by deposition. Here the evidence of appellants, previously related, was the testimony of J. H. Kerby and it was given before the jury. Who was to determine what impression he made on the jury, what weight and credence should be given to all or to portions of his testimony? Was the jury obliged to believe, and did it believe, he related all he knew, or may have suspected, concerning the note in question? While there was no other direct testimony with respect to the usual discount the jury may have been skeptical about it. In fact, it may not have believed it. Kerby inquired of Briggs concerning the consideration for the note but Briggs did not tell him much. Was that not a suspicious circumstance? Part of the purchase price of the note was paid to Haynes of Clinton who had recommended the note. Was the jury com-' pelled to believe that Kerby thought Haynes’ recommendation was free from bias and that the request to pay $50 to Haynes created no suspicion in the mind of Kerby with respect to the note? Can we say that, upon consideration of all the circumstances, the jury was wholly wrong in believing Kerby should have contacted the maker before purchasing the note? Is there no foundation for believing that probably Kerby did not want to learn more about this note? We think courts would not be justified in resolving, as a matter of law, all the factual questions here involved.
We pause to observe this is not a case involving the acceptance of a note by a bank from a correspondent bank in the regular channels of trade and business, or a similar transaction, free from suspicious circumstances. From what has been said it must not be inferred that this court is passing on the question of the good faith of Kerby or Haynes. That is precisely what we are not doing. We simply say the evidence was sufficient to warrant the trial court in submitting to the jury the issue of holder in due course.
This brings us to the special findings of the jury and the post-trial motions. The special findings were:
“1. Did D. J. Briggs induce John. Bott to sign the note in question in this case, by false and fraudulent statements made to him, as claimed by Bott in this case? A. Yes.
“2. Did the plaintiffs have any notice of any infirmity in the note at the time they acquired it? A. Yes.
“3. If you answer Question 2 in the affirmative, specify the nature of such notice of infirmity. A. Sacrifice of said note under such short ownership.
“4. If you answer Question 2 in the affirmative, what was such infirmity? A. Character of person disposing of note.
“5. Did the plaintiffs have any notice of any defect in the title of Briggs when he negotiated the note to plaintiffs? A. Yes.
“6. If you answer Question 5 in the affirmative, specify the nature of such notice. A. No license from the State of Kansas.
“7. If you answer Question 5 in the affirmative what was such defect? A. Promoter of questionable oil stock and other securities.
“8. Were the plaintiffs guilty of any bad faith in the purchase of the note? A. Yes.
“9. If you answer Question 8 in the affirmative, specify of what said bad faith.consisted. A. Failure of investigation.”
Appellants’ motion for judgment on the entire record was not filed until the jury had returned the general and special verdicts. But even if considered as though it had been presented promptly at the close of all the evidence it could have been tantamount only to a motion for a directed verdict based on the theory that reasonable minds could not differ in their conclusion as to whether appellants were holders in due course. So considered, as previously indicated, the motion was properly overruled.
. Appellants also moved for judgment on the ground the special findings were inconsistent with the general verdict, with each other, and that they were contrary to the evidence. The same grounds were alleged in a motion to strike all of the findings except finding No. 1. The last mentioned finding therefore stands and it is consistent with the general verdict. The other findings, if accepted as true, are not inconsistent with the general verdict for the reason they do not affirmatively show appellants were holders in due course. The special findings therefore do not compel judgment for appellants. The special findings could not be set aside on the ground they were inconsistent with each other. Findings six and seven will be treated presently.
Appellants complain concerning the exclusion of certain letters they wrote to Bott requesting payment of the note. The trial court admitted in evidence one of the letters and admitted in evidence the fact that the other letters demanded payment. The letters contained irrelevant, incompetent and self-serving declarations. The ruling was proper. ' >
But what about the motion for a new trial? One of the grounds of the motion was that the verdict was given under the influence of passion or prejudice. If there was testimony in support of findings six and seven it is not disclosed by the record before us. There is nothing which even remotely justifies those findings insofar as any consideration for the instant note is concerned. The testimony of J. H. Kerby was that he did not know Briggs was a dealer in oil stocks and securities. There is no testimony that he did know that fact. So far as the record before us is concerned those special questions should not have been submitted to the jury. One of the pleaded defenses to the note, which we did not previously mention for the reason that there is no evidence in the record here to support it, was that Briggs was a dealer in oil stocks and speculative securities and possessed no permit from the state of Kansas to engage in such business. On oral argument we were advised the alleged defense was included in the instructions as a part of the pleadings. Portions of pleadings which are without support in the evidence should not be included in the instructions. (Houghton v. Sabine Lumber Co., 128 Kan. 584, 589, 278 Pac. 758; Boss v. Brown, 132 Kan. 86, 89, 294 Pac. 878; Pirott v. Heinen, 137 Kan. 186, 193, 19 P. 2d 723.) Such pleadings frequently confuse jurors and produce prejudice. That is particularly true of pleadings which charge a violation of law such as those here involved.
It is true there were no objections to the instructions but that does not alter the fact the jury made damaging findings outside the record which undoubtedly weighed in its consideration of the general verdict. Appellants expressly asked to have them stricken on the ground they were not supported by the record. Moreover on appellee’s own theory this note was hot given in consideration of a sale of oil stocks or speculative securities by Briggs to Bott. Appellee’s contention was he did not buy anything from Briggs, the note was without consideration, and that he did not know he was signing a note. In view of these circumstances we think it affirmatively appears appellants did not have a fair trial.
The judgment is reversed with directions to grant a new trial.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Parker, J.:
In an action to recover the agreed and reasonable value of wheat delivered to an elevator the defendants demurred to the plaintiff’s evidence. The trial court overruled the demurrer of one defendant and rendered judgment against him for the full amount of the plaintiff’s claim. It sustained the demurrers of all other defendants. The appeal is from the ruling sustaining the demurrers and the rendition of a judgment for costs in favor of those defendants whose demurrers were sustained.
During the spring and summer of 1942 the plaintiff and eight other individuals residing in the vicinity of Longford sold wheat to the Bruns Grain Company in that city for which they were not paid. In July, 1942, the elevator was destroyed by fire and the company ceased to do business. Thereafter, the eight individuals referred to assigned their claims to plaintiff and he instituted this action against the defendants, Jesse Bruns, Reno Bruns and the Kansas Elevator Company, claiming they were jointly and severally liable for the value of all the wheat so delivered and sold by him and his assignors to the Bruns Grain Company.
Since Jesse Bruns, who was operating the elevator on all dates on which wheat was purchased, did not appeal from the judgment and the parties in the court below stipulated such wheat was worth the amount claimed at the time it was delivered, and conceded it has never been paid for, we are concerned only with allegations of the pleadings and portions of the evidence relating to the claimed relationship existing between the parties defendant on the dates liability for plaintiff’s claims was incurred.
With respect to the subject just mentioned the first cause of action set forth in the petition reads:
“(2) Said The Kansas Elevator Company was at all times mentioned in the petition, a corporation,- duly organized and existing under the laws of the State of Kansas, and duly engaged in the grain, feed and coal business, and buying and selling of same, at Salina, Kansas and Longford, Kansas.
“(3) At all times mentioned in the petition, the defendants herein were duly engaged together in the business of buying and selling grains, coal and feeds at Longford, Kansas, under some arrangement among themselves, by which they shared the profits and losses, the exact details of which are unknown to plaintiff, and well known to the defendants, and conducted the business at Longford, Kansas, under the trade name of The Bruns Grain Co., under which arrangement, said The Kansas Elevator Company and said Reno Brims furnished all or most of the operating capital and the said Jesse Bruns was the local manager of the said business at Longford, Kansas, duly authorized to buy and sell grains, coal and feeds for said defendants, and to write checks upon the funds of said defendants, or otherwise to pay from the funds of defendants for same.
“(4) Plaintiff delivered to said defendants, at Longford, Kansas, within three (3) years next preceding the commencement of this suit, 919 bu. and 50 lbs. of wheat, which was at said time, of the orally agreed and reasonable value of ninety cents (.90) per bushel; and it was then and there orally agreed by and between plaintiff and said defendants, by and through their said duly authorized agent and manager, Jesse Bruns, thereunto duly authorized (but whether in writing or not, plaintiff does not know, but same is well known to defendants) that said defendants would pay plaintiff therefor, said agreed or reasonable value, and at the option of plaintiff, at the reasonable market value of such wheat at such place at such time, as plaintiff should call for the money for said wheat at said place of business. That thereafter, and before plaintiff called for said money, the said defendants, on or about July 31, 1942, closed said place of business, and have neglected and failed, and refused to pay plaintiff for said wheat; . .
The petition contains eight additional causes of action but no further mention need be made of them for the reason that plaintiff’s right of recovery on each, except for allegations pertaining to dates wheat was sold to the Bruns Grain Company, the identification of persons making such sales, and the subsequent assignment of their claims therefor, depends on the allegations and averments to be found in the first cause of action which by reference were made a part of all other causes of action set forth in such pleading.
Defendants, Reno Bruns and the Kansas Elevator Company, filed verified answers. In such answers they denied generally the allegations of the petition. In addition, they specifically denied they were in business with Jesse Bruns in the buying and selling of grains, coal and feeds, or that in the operation of the elevator at Longford he was acting as their agent, servant or employee, in purchasing wheat and grain from the plaintiff or his assignors.
Irrespective of whether plaintiff predicated his right of action on the theory of partnership or that of principal and agent, an examination of the pleadings makes it obvious that before he could prevail under either theory he must first establish that in purchasing wheat from plaintiff or his assignors Jesse Bruns was acting in some capacity as the agent of his codefendants. A perusal of the briefs reveals the parties regarded that question as the all-important one and the trial court so considered it for, in passing on the demurrers which were general in form, it specifically pointed out and based its ruling upon the proposition there was no evidence adduced by the plaintiff showing or tending to show that he was the agent of either Reno Bruns or of the Kansas Elevator Company.
We are required therefore, since appellant’s principal specification of error raises the question, to examine the record for the purpose of determining whether under all the evidence the ruling of the trial court on the demurrers and its subsequent judgment was correct.
In attempting to establish agency as alleged in his petition the plaintiff was obliged to and did rely almost entirely upon the testimony of Jesse Bruns. From a careful examination of the record we believe the following summarization of the testimony of this witness tells the story in the light most favorable to appellant’s position.
For sometime prior to July 31, 1942, Jesse Bruns had been in the grain business at Longford, operating a grain elevator under the name of The Bruns Grain Company. The elevator building and equipment was owned .by his brother, Reno Bruns, who, from and after the fall of 1938 when he was employed by the United States Government, had no interest in the business but was supposed to receive rental for his property on the basis of one cent a bushel for grain passing through the elevator up to a certain amount (not specified by the witness), three-quarters of a cent per bushel after it reached that amount up to 75,000 bushels and one-half cent per bushel on all grain in excess of such quantity. Jesse had an understanding with the Kansas Elevator Company whereby that company was to finance him in his operations. Under that arrangement an account was opened in the Commerce Trust Company in the name of the Bruns Grain Company. When he bought wheat he wrote checks on that account and the elevator company was to take care of the funds in the bank to pay such checks. He was to ship the wheat to the company, which was to sell it, take out from the proceeds the money they had advanced for checks written by him together with the usual and ordinary commission for selling wheat and deposit the balance in the Bruns Grain Company account. When so deposted the money belonged to the grain company. The witness received reports from the elevator company of the amounts for which cars of wheat were sold. The Kansas Elevator Company did not participate in any way in the profits or losses; it received no interest for the money advanced by it and paid into the account; it received nothing except the usual and ordinary commission charged for the sale' of grain, and as to all wheat which had not been paid for by the elevator company it could not require the Bruns Grain Company to ship such wheat to it for sale in Kansas City.
Other testimony of the witness, more favorable to the appellant’s theory than what has just been related, was in substance to the effect he had never invested any of his own money in the Bruns Grain Company; he took out no insurance on wheat in the elevator; the bookkeeping on grain that was sent to Kansas City was taken care of by the elevator company; the rent due Reno Bruns for use of the elevator building and equipment was paid by it out of funds realized from sale of grain and deposited in the Bruns Grain Company account; checks written by him in payment for grain he had purchased were signed “The Bruns Grain Company, by Jesse Bruns, Manager”; he had not instructed the Commerce Trust Copipany to refuse payment on checks which he had given to some of plaintiff’s assignors at the time they delivered their grain to him; just before the elevator was closed (and whether it was closed before it was destroyed by fire does not appear from the records) he received a telegram from the Kansas Elevator Company in regard to shipping, the substance of which was a direction to him to ship out the wheat, but he did not do so; that shortly after the elevator burned on July 31, 1942, H. L. Robinson and Reno Bruns were in Clay Center, and that after the fire some truckmen without instructions from him hauled away what wheat was left in the ruins. '
Aside from what has just been related the only other evidence adduced by plaintiff which could possibly be construed as tending to establish agency as claimed by him in his petition came from the lips of three witnesses.
The plaintiff testified there were at all times involved in the action two elevators in Longford, one of which was, “Known as the Robinson Milling Company, Bruns running it — Bruns Elevator.” He also stated he had done business at Bruns Grain Company ever since it was there, about six years prior to* July 31, 1942.
The testimony of another witness, A. A. Greep, who was one of those who had assigned his claim to the plaintiff, appears in the record as follows:
“Q. Who weighed your wheat? A. I think Jesse Bruns — Reno was there sometimes, but I think Jesse Bruns always waited on me.
“Reno appeared to be ‘kind of looking things over.’
“Jesse Bruns told witnesses ‘Robinson was furnishing the money or something like that’.”
Another witness whose testimony was produced in the form of a deposition stated he was in the insurance business and employed by a group of ten companies under the style of Mills Mutual. That his companies carried insurance in 1942 on an elevator at Longford in the name of R. E. Bruns and insurance on the wheat and merchandise with the Kansas Elevator Company. Also, that there was a loss in June or July and his company paid the Kansas Elevator Company from $1,400 to $1,600 on the stock,
In approaching determination of the import to be given the evi dence the trial court had before it in sustaining the demurrers, we recognize two fundamental and well-established principles. One is, what constitutes agency, and whether or not there is any competent evidence reasonably tending to prove its existence is a question of law to be determined by the court. (1 Mechem on Agency, 2d ed., 213, § 293; 2 Am. Jur. 359, § 454; 3 C. J. S. 323, 326, § 330; Juniata College v. Warren, 118 Kan. 228, 232, 235 Pac. 98.) Another, that whenever the relationship of principal and agent is in issue the party relying thereon to establish his demand or claim lias the burden of establishing its existence by competent evidence (1 Mechem on Agency, 2d ed., 183, § 255, and 215, § 298; 2 Am. Jur. 349, § 442; 3 C. J. S. 253, § 315; Bank v. Robinson, 93 Kan. 464, 144 Pac. 1019; Bank v. Frost, 70 Kan. 480, 481, 78 Pac. 825 and Mortgage Co. v. Randall, 113 Kan. 62, 213 P. 2d 668).
We recognize, also, there are two types of agency, one actual and the other ostensible or apparent (1 Mechem on Agency, 2d ed., 37, § 57; 2 C. J. S. 1035, 1036, § 3, and 2 Am. Jur. 68, § 85). Competent evidence as to either type requires the overruling of a demurrer. Conversely, lack of any evidence requires that it be sustained.
The authority of an actual agent may be either express or implied. In passing upon whether there is evidence sufficient to show actual agency a court must first examine the record to ascertain if the one sought to be charged has delegated authority to the alleged agent by words which expressly and directly authorized him to do a delegable act. If that evidence appears the authority of the agent is said to be express. (2 Am. Jur. 70, § 86.) If no express authorization is found it must then inquire as to whether the alleged agent possesses implied power. The test to be applied in determining whether that authority exists is well stated in 2 C. J. S. 1045, § 23, where it is said:
“The relation of agency need not depend upon express appointment and acceptance thereof, but may be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case. If, from the facts and circumstances of the particular case, it appears that there was at least an implied intention to create it, the relation may be held to exist, notwithstanding a denial by the alleged principal, and whether or not the parties understood it to be an agency. On the other hand, where it does not appear that there was any express or implied intention to create the relation, it will not'be held to exist, as where it appears that the agent was acting on his own behalf.
“An implied agency must be based on facts for which the principal is responsible, they must, in the absence of estoppel, be such as to imply an intention to create the agency, and the implication must arise from a natural and reasonable, and not from a forced, strained, or distorted, construction of them. They must lead to the reasonable conclusion that mutual assent exists, and be such as naturally lead another to believe in and to rely on the agency. The existence of the relation will not be assumed.
“While the relation may be implied from a single transaction, it is more readily inferable from a series of transactions.
“An agency will not be inferred because a third person assumed that it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make such an agency seem natural and probable and to the advantage of the supposed principal, nor from facts which show that the alleged agent was a mere instrumentality.”
See, also, 2 Am. Jur. 70, § 86.
Our own decisions are in accord with the rule just quoted. In Walker v. Eckhardt, 122 Kan. 453, 251 Pac. 1093, we held:
“To establish the relation of agency an express appointment and an acceptance thereof is not essential, but it may be implied from other facts, such as the statements of the parties, their conduct and the relevant circumstances. (Following Wilson v. Haun, 97 Kan. 445, 155 Pac. 798.)” (Syl. ¶ 3.)
To the same effect are Fritchen v. Mueller, 132 Kan. 491, 297 Pac. 409; Cummins v. Standard Oil Co., 132 Kan. 600, 296 Pac. 731, and Lewis v. Montgomery Ward & Co., 144 Kan. 656, 62 P. 2d 875.
Finally if actual agency is not disclosed the court must search the record to ascertain if there is evidence sufficient to raise a factual question on whether the alleged agent of the one sought to be charged as principal had ostensible or apparent authority to obligate him by his action. An ostensible agent has been defined as one whom the principal has intentionally or by want of ordinary care induced third persons to believe to be his agent, although no authority has been conferred on him, either expressly or by implication (2 C. J. S. 1036, § 3). See, also, 2 Am. Jur. 82, 83, § 101, which reads:
“The liability of the principal for the acts and contracts of his agent is not limited to such acts and contracts of the agent as are expressly authorized, necessarily implied from express authority, or otherwise actually conferred bj' implication from the acts and conduct of the principal. All such acts and contracts of the agent as are within the apparent scope of the authority conferred on him, although no actual authority to do such acts or to make such contracts has been conferred, are also binding upon the principal. Apparent authority, or ostensible authority, as it is also called, is that which, though not actually granted, the principal knowingly permits the agent to exercise, or which he holds him out as possessing. Accordingly, as defined by the American Law Institute, an apparent agent is one who, with or without au thority, reasonably appears to third persons to be authorized to act as the agent of another.”
Guided by the fundamental principles to which we have heretofore referred and fully cognizant of the rule suggested by counsel for appellant and frequently announced in our decisions (see Picou v. Kansas City Public Service Co., 156 Kan. 452, 134 P. 2d 686; Prewett v. Sholl, 120 Kan. 158, 242 Pac. 149 and Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008), to the effect a demurrer to the evidence will only be sustained when the court is able to say, admitting every fact proven which is favorable to plaintiff as well as those which are fairly and logically to be inferred from the evidence favorable to him, that he nevertheless has failed to make out some one or more of the material facts of his case, we have carefully examined the record.
In passing it should perhaps be noted that as to some causes of action set forth in the petition Jesse Bruns had issued checks for the wheat delivered, while as to others he had merely received delivery and issued scale tickets to the seller with an agreement he would pay the market price when the latter desired to sell. The Bruns Grain Company was not bonded and had not complied with the statute (G. S. 1935, ch. 34, art. 2) so as to become a public warehouseman. Under that statute and our decisions (Kipp v. Goffe & Carkener, 144 Kan. 95, 58 P. 2d 102; Green v. Fortune, 151 Kan. 598, 100 P. 2d 631, and Schmitz v. Stockman, 151 Kan. 891, 897, 101 P. 2d 962) all transactions here involved were sales and so far as questions of agency are concerned no room exists for differentiation. Liability depends not on the character of the transaction but the authority, if any, conferred by the principal under the evidence presented to the trial court.
Appellant strenuously insists the evidence which we have related discloses agency, both actual and ostensible. In support of his position he cites but three cases. They are, Cain v. Wallace, 46 Kan. 138, 26 Pac. 445; Aultman v. Knoll, 71 Kan. 109, 79 Pac. 1074, and Sinclair Refining Co. v. Vaughn, 135 Kan. 82, 9 P. 2d 995. When carefully analyzed it appears that each deals with questions pertaining to the scope of an agent’s authority. To illustrate, in the Cain case it is stated the alleged agent was so recognized by his principal; in the Aultman case the agent testified he represented his principal in the transaction in controversy; while in the Sinclair Refining case the contract of agency was in writing and the fact of agency conceded. The principles enunciated in such decisions are sound. The same is true of the general principles announced in the well-established law treatises to which appellant also refers. But we do not find them helpful here. What we are concerned in is, not what was the scope of the authority conferred on an agent, but whether there was evidence tending to establish the fact the relationship of principal and agent existed at all during the time of the transacting of the business which led to the institution of this lawsuit.
Exhaustive as our'examination of the record has been we fail to find any tangible evidence that in the purchasing of grains, coal and feeds, Jesse Bruns was the agent of either of his codefendants. His testimony in its entirety amounted to a denial that such a relationship existed and no one gainsaid his version. Moreover, no witness testified to a state of facts justifying the conclusion either of the defendants sought to be charged as principals had intentionally or by want of ordinary care led the plaintiff or his assignors to believe he was authorized to act as their agent in the purchasb of grain. Nor does the record disclose any witness dealt with him as agent on the strength of such relationship or was justified in presuming its existence. With respect to the Kansas Elevator Company what the evidence does disclose is that it had entered into an arrangement with Jesse Bruns to stake him in the buying of grain — a not uncommon occurrence in Kansas — with no right to direct his operations except as to the shipping of grain for which it had advanced the money, or to share in the profits, and no thought or intention of assuming liability for his debts. So far as Reno Bruns is concerned it reveals that from and after the fall of 1938 he simply rented the building and equipment which he owned on an agreed rental basis with no control over the business whatsoever. True enough, there may be found some isolated bits of testimony which might, if the trial court had been permitted to indulge in speculation and conjecture and disposed to give them a forced, strained or distorted, construction, give rise to a suspicion the parties had some arrangement other than that disclosed by the evidence. Even so, there is nothing in any of that testimony sufficient to raise a presumption or inference such a situation existed. The trial court was not permitted to speculate or surmise. It could not assume the existence of facts not proved by appellant in support of his cause. All it could do was to pass upon the evidence before it. That evidence in its opinion, and in ours as well, failed to establish the existence of agency, either actual or ostensible.
Much to our surprise a search of the authorities discloses few decisions dealing with facts, circumstances and issues, similar to those involved in the instant proceeding. Perhaps nearest in point is our own case of Sheerer v. Kanavel, 106 Kan. 220, 187 Pac. 658. While it lacks some factual features, it possesses many of like nature and the issues involved are almost identical in character. We regard it as a precedent which, if not entirely determinative, certainly fortifies and is sound authority for the conclusion heretofore announced.
We turn now to consideration of other arguments advanced by appellant in support of his position but which we have regarded as of minor importance in reaching our decision.
In what is an apparent attempt to bolster the evidence our attention is directed to a remark made by counsel for defendant, The Kansas Elevator Company, in his opening statement. It is urged the remark was such an admission as to do away with the necessity of proof of the existence of agency as alleged in the petition. We quote from a portion of the opening statement referred to, italicizing the portion relied on for purposes of information and emphasis. It read:
“We had no interest whatever in any grain that was delivered in that elevator except that which we paid for with our funds, because we wez-e merely financing him in the purchase of grain. We did not finance him in any of his other operations. We financed him only in the grain that we purchased.
“And if a farmer brought grain to him and he paid the farmer for that grain with our money by drawing this check on the Commerce Trust Company, then we owned that grain. Then when it was sent to us and sold we got our regular commission for the sale of the grain, and all profits went to the Bruns elevator. We did not share in any profits of the business or any of the losses of the business. We had no agencies with either of the Bz-uns; they wez'e not our agents in any regaz-d. We were merely a financing institution, and that was all the interest that we had.” (Emphasis supplied.)
However construed, we do not regard the emphasized remark as an- admission of agency or as serving the purpose of doing away with the obligation resting on appellant to prove its existence. Clearly, if regarded as an admission it was not understandingly or intentionally made. The other quoted portions of the statement evidence that fact beyond peradventure of a doubt. This court is committed to the rule that where there, is doubt or ambiguity in an opening statement the counsel who makes it is entitled to the presumption he did not intend to make an admission that would be fatal to his case. (See Hall v. Davidson, 73 Kan. 88, 84 Pac. 556; Smith v. Insurance Co., 108 Kan. 572, 196 Pac. 612; Caylor v. Casto, 137 Kan. 816, 22 P. 2d 417; Speer v. Shipley, 149 Kan. 15, 16, 17, 85 P. 2d 999, and Northington v. Northington, 158 Kan. 641, 643, 149 P. 2d 622.)
Heretofore we have limited our consideration to questions pertaining to the evidence as to agency. Appellant points out that Reno Bruns in his opening statement admitted, while Jesse Bruns testified, that prior to the fall of 1938 the Bruns Grain Company had been operated by them as general partners and 'that appellant’s testimony was that he had done business with the company since it first engaged in the grain business in 1936. Conceding that to be the situation what is there in the evidence to establish liability on the part of Reno, who under the undisputed testimony had not had an interest in the business for more than three years prior to the date appellant sold and delivered his grain to Jesse under an agreement the latter was to pay him for it when the price was satisfactory? Appellant contends that in the face of such evidence Reno could not escape liability without showing he had given actual notice of his retirement from the firm and cites Merritt v. Williams, 17 Kan. 287, and Woodard v. Timms, 113 Kan. 413, 215 Pac. 456, as sustaining his contention. We do not agree. The Woodard case merely is authority for the proposition that one who had a tentative business arrangement with a partnership which was not consummated until after the firm was dissolved, if he had no notice of the dissolution, could hold the members of the partnership to the obligation as originally incurred, while the Merritt case simply holds that a single cash sale of cattle to a partnership firm dealing in cattle does not entitle the vendor to actual notice of the dissolution of the partnership or, through lack of such notice to hold both partners on a sale made two years thereafter, and eighteen months after the dissolution of the firm, when the actual dealings were had with only one of the former partners. Not cited by appellant but in line with the decision in the Merritt case is Samuel Ach Co. v. Thorpe, 115 Kan. 812, 224 Pac. 917. There the plaintiff sought to hold individual members of a partnership for goods sold to the partnership on credit after such persons had ceased to have any interest in the business. In determining liability under such circumstances we said that if the first bill of goods was sold to the partnership as originally created on credit the plaintiff was entitled to notice of the changed condition while if such shipment was not sold on credit plaintiff was not entitled to notice of the changed partner relationship. Here the record is silent on the question of whether appellant’s former dealing with the Bruns Grain Company involved the sale of wheat and, if so, whether it was sold to Jesse Bruns on the strength of his promise to pay for it under the circumstances heretofore related. Evidence of that character was required in order to make Reno Bruns liable on the premise he was a former member of the partnership and had not notified appellant of the partnership’s dissolution. This evidence the appellant failed to produce. It follows the trial court’s ruling on the demurrer was correct. This is true even though such ruling was based solely upon the ground appellant had failed to produce any evidence of agency. Reasons given for the trial court’s decision became immaterial and need not be considered when it appears a correct judgment has been rendered under the facts and the law. (State Highway Comm. v. Stadler, 158 Kan. 289, 294, 148 P. 2d 296; City of Wichita v. Boles, 156 Kan. 619, 135 P. 2d 542, and Nebraska Hardware Mut. Ins. Co. v. Johnson, 156 Kan. 756, 137 P. 2d 125.)
One last contention challenges our attention. During the course of the trial the appellant, who had been recalled by his counsel for further direct examination, was asked the following question: “Did the Bruns elevator have a general reputation in that community of being owned by Jesse Bruns, Reno Bruns and the Kansas Elevator Company?” Objection was made to the question and sustained by the trial court on the ground it was leading. Appellant insists this ruling was erroneous. His position cannot be upheld. Clearly the question was leading and under our practice an objection thereto was properly sustained. Just why appellant did not pursue the subject further and reframe the question is not disclosed but he did not do so and he cannot now be heard to predicate error upon the trial court’s ruling. It should be added that had he done so evidence of the character sought to be elicited would not have been admissible if proper objection had been made thereto. Evidence of general reputation to prove existence of the relationship of principal and agent is inadmissible unless it is accompanied by other evidence that the principal sought to be charged knew of the report and acquiesced in it (1 Mechem on Agency, 2d ed., 210, § 290; 2 Am. Jur. 356, § 449; Thompson v. Manufacturing Co., 60 W. Va. 42, 53 S. E. 908, 6 L. R. A., n. s., 311, and 3 Elliott on Evidence, 79, § 1638). Likewise, in the absence of other testimony, evidence of general reputation is inadmissible to establish the existence of a partnership (9 Encyc. of Ev. 547; 40 Am. Jur. 188, § 85; 2 Greenleaf on Evidence, 16th ed., 464, § 483 and 47 C. J. 724, § 131). Here the appellant failed to produce any testimony of a character which, under the rules just stated, would make admissible evidence of general reputation as to the existence of either agency or partnership. The trial court did not err in excluding the testimony.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for a declaratory judgment authorized by our statute (G. S. 1935, 60-3127 et seq.) for a binding adjudication of the rights of the parties as to the oil and gas in and under and produced from a described tract of land. In its petition, after stating the facts, it was alleged that an actual controversy existed between the parties, the plaintiff claiming an undivided one-half of the minerals in place with the right to go upon the premises and explore and develop the same and to execute oil and gas leases therefor, while defendants contend that plaintiff’s rights are limited to one-half of the royalty from oil and gas produced from the land. The determination of the controversy turns largely upon the interpretation of an instrument executed by the landowners to plaintiff, a copy of which was attached to the petition as Exhibit “A.” Defendants answered, admitting that the con troversy between the parties existed as alleged by plaintiff and admitted most of the facts alleged in plaintiff’s petition, but denied some of them. .Defendants, by a cross petition, alleged that the same controversy existed between the parties as to their rights under similar instruments executed to plaintiff by the respective owners of four other tracts of land, and asked that the rights of the parties under the instruments and the facts relating thereto be determined as to those other tracts of land. Plaintiff filed a reply, which was a general denial to defendants’ answer. It also answered their cross petition, admitted there was an actual controversy between the parties with respect to their rights as to the other four tracts of land, which in substance was the same as the controversy respecting the rights of-the parties to the land described in plaintiff’s petition. Defendants filed a reply to plaintiff’s answer to their cross petition.
The action was submitted to the court upon a written statement of facts, which was agreed to. The court’s judgment was for plaintiff and defendants have appealed.
Respecting the land described in plaintiff’s petition the stipulated facts may be summarized as follows:' On May 10, 1929, Lewis B. Hillard, the then owner of the land, and his wife executed an oil and gas lease thereon to the Dixie Oil Company for a primary term of ten years from the date thereof. No oil or gas was produced on the land during that ten-year period. The lease was kept in full force during all of the ten-year period and was duly released by the Stanolind Oil and Gas Company, the assignee thereof, on June 19, 1939. Both the lease and the release thereof were duly recorded in the office of the register of deeds.
On April 21, 1934, Lewis B. Hillard, then being the owner in fee simple of the land, subject only to the oil and gas lease to the Dixie Oil Company above noted, together with his wife, Martha Jane Hillard, as grantors, for a valuable consideration made, executed and acknowledged to plaintiff, as grantee, an instrument entitled “Sale of Oil and Gas Royalty,” which instrument was duly recorded in the office of the register of deecls on May 19, 1934, a copy of which was attached to plaintiff’s petition as Exhibit “A,” and alleged that at all times subsequent to the execution of the instrument plaintiff has been and is the owner of all right, interest, title and estate granted, assigned and conveyed thereby.
On November 17, 1939, Martha Jane Hillard, the widow of Lewis B. Hillard, then deceased, and the owner of a life estate in the real property, subject to the instrument to plaintiff entitled “Sale of Oil and Gas Royalty,” as lessor, executed to one Fred Nixon two oil and gas leases, which together covered the land described in the instrument above mentioned, entitled “Sale of Oil and Gas Royalty.” These leases were duly recorded in the office of the register of deeds, and on December 30, 1939, the owners of the remainder interest in said real estate, subj ect to the instrument to plaintiff entitled “Sale of Oil and Gas Royalty,” and their spouses executed written ratifications of the oil and gas leases to Nixon, which ratifications were duly recorded in the office of the register of deeds. Fred Nixon assigned those leases to the defendants, who are now the owners of the rights thereunder.
That about February 9, 1944, defendants entered upon the real property in question under one of the oil and gas .leases to Nixon above mentioned and drilled a test well for oil and gas purposes, which well was completed as a producing well about May 24, 1944. At all times subsequent thereto the defendants have been and are now producing and marketing oil therefrom.
Facts are stipulated as to the four tracts of land brought into the case by the cross petition of defendants, but since the legal questions involved are the same in all tracts there is no necessity of setting out the stipulation as to the four tracts.
The leases under which defendants are operating provide for the same royalty payment to the landowner, one-eighth of the oil produced, as was provided in the oil and gas lease to the Dixie Oil Company first mentioned.
The instrument necessary to be interpreted, attached to plaintiff’s petition as Exhibit “A,” is on “Form 11 — Revised,” which was a printed form, some words of which were deleted and other words inserted with a typewriter. As printed here the typewritten words are in italics and the. deleted words are in brackets.
“EXHIBIT ‘A’
Sale op Oil and Gas Royalty
“Know All Men by These Presents, That Lewis B. Hillard, and Martha Jane Hillard, his wife, of Pratt County, State of Kansas for and in consideration of the sum of One and no/100 DOLLARS ($1.00) each in hand paid by Shelly Oil Company, a Corporation hereinafter called Grantee, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, convey, assign and deliver unto said Grantee an undivided One-Half interest in and to all of the oil, gas and other minerals in and under, and that may be produced from the following described land situated in Pratt County, State of Kansas to-wit: (A 120 acre tract of land is described), together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals and removing the same therefrom, with the right at any time to remove any or all equipment in connection therewith.
“Said land being now under an oil and gas lease executed in favor of Dixie Oil Company it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes One-Half of all the oil royalty, and gas rental or royalty due and to be paid under the terms of said lease.
“It is understood and agreed that None of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said Grantee and in the event that the above described lease for any reason becomes cancelled or forfeited then and in that event [an undivided] None of the lease interests and [all] none of the future rentals and bonuses on said land for oil, gas and other mineral privileges shall be owned by the said Grantee, Grantee however owning [owning] One-Half of all oil, gas and other minerals in and under said lands [together with interest in all future events.]
“To Have and to Hold the above described property, together with all and singular the rights, appurtenances thereto in anywise belonging unto the said Grantee, herein, its successors [heirs] and assigns [forever] for a period of fifteen years ¡rom date and as long thereafter as oil or gas or other minerals are produced from said land; and Grantors do hereby bind themselves and their heirs, executors, and administrators to warrant and forever defend all and singular the said property unto said Grantee herein its successors [heirs] and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, and agree that the Grantee shall have the right at any time to redeem for Grantors by payment, any mortgage, taxes or other liens on the above described lands, in the event of default of payment by Grantors, and be subrogated to the rights of the holder thereof.
“Witness our hands this 21st day of April 1934.
(Signed)
“Lewis B. Hillard,
"Martha Jane Hillard.”
This instrument was duly acknowledged by the Grantors and recorded.
The oil and gas lease executed by Martha J. Hillard on November 17,1939, to Fred Nixon, which was later ratified by the owners of the remainder interest, was on the usual Producers 88-B form and by its terms granted to the lessee the right to explore and produce all of the oil and gas in and under t'he land. It is plaintiff’s contention that because of Exhibit “A” attached to its petition, hereinbefore set out, the maker and ratifiers of that lease had no. right to grant to the lessee the right to take more than one-half of the’oil and gas in and under the land. Plaintiff further contends that by the instrument Exhibit “A,” attached to its petition, the plaintiff is the owner of oner-half of the oil, gas and other minerals in and under the land, with the right to explore and produce oil and gas and other minerals from the land, and that it had as much right to execute a lease upon the property as did Martha J. Hillard and those who ratified the lease she made.
Defendants contend that by the instrument Exhibit “A,” attached to the petition, the grantors reserved the right to execute a lease for the production of all the oil, gas and other minerals in and under the land,-and that the rights of the plaintiff were limited to one-half of the royalty. We think the view of the defendants is correct. It seems to be conceded that the plaintiff prepared the instrument, in which situation the general rule is that any ambiguities in it should be construed more favorably to the lessors. The instrument was a printed form. Some words in it were deleted and some were written in before it was executed. In such a case it is well settled that the changes made in the printed form are considered for the purpose of determining the intent of the parties as entitled to greater weight than the printed word where there is any conflict in them. (Hickey. v. Dirks, 156 Kan. 326, 133 P. 2d 107; Haynes Hardware Co. v. Western Casualty & Surety Co., 156 Kan, 356, 133 P. 2d 574, point (4) of syllabus.) These general principles‘are not seriously controverted.
In determining the meaning of this instrument we first note that it bears the title of “Sale of Oil and Gas Royalty.” The word “royalty” has come to have a definite-legal meaning as being what is paid by the operator of the lease to the landowner as his share of the oil produced and does not include a perpetual interest in the oil, gas and other minerals in and under the land. (See Serena v. Rubin, 146 Kan. 603, 72 P. 2d 995, and authorities there cited.) While it is true that the title of the instrument is not altogether controlling, yet with such a title the contents of the instrument must make it clear that it is something else than what its title indicates. For one skilled in the preparation and interpretation of instruments pertaining to oil rights, to go to a landowner with an instrument purporting to provide for the sale only of royalty, but which is so worded as to convey an entirely different interest in the land, might very well be a material misinterpretation. (Serena v. Rubin, supra.)
Plaintiff contends that the first paragraph of the instrument is a positive sale, grant and conveyance of an undivided one-half interest of the oil in place as distinct from, a grant, sale and conveyance of a royalty interest; that this positive grant is not negatived by the language used in the third paragraph, but if attempted to be so negatived the third paragraph is void. We cannot agree with that contention. The general rule is that these instruments are to be interpreted from their “four corners,” that is to say, that all the language used anywhere in the instrument should be taken into consideration and construed in harmony with other portions of the instrument. (See Utilities Co. v. Bowersock, 109 Kan. 718, 202 Pac. 92; 17 C. J. S. 707, § 297, and cases there cited.)
We take note of the fact that plaintiff’s argument, carried to its extreme and applied to the last paragraph of the instrument, would render void the fifteen-year limitation provided therein. But we pass that thought, for the fifteen-year limitation is not involved now in this controversy. Counsel for plaintiff lay much stress upon the language in the first paragraph, “together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals and removing the same therefrom., with the right at any time to remove any or all eqiiipment in connection therewith.” That clause could have no effect at the time the instrument was executed because the next paragraph recites that the land was at that time under an existing lease in favor of the Dixie Oil Company, which under its terms would justify us in assuming, since it is not contended otherwise, that the Dixie Oil Company had the sole right to enter upon the land and explore for and remove gas, oil and other minerals. So, at the time Exhibit “A” was executed this clause had no effect. The second paragraph made it clear that as to the existing lease to the Dixie Oil Company the plaintiff in this action had no right to anything but one-half of the royalty.
In the third paragraph it is further provided that the plaintiff herein would have none of the money rentals which might be paid to extend the term which the grantee of the lease to the Dixie Oil Company had within which a well might be begun. So, up to that time, it is clear that the plaintiff was granted only one-half of the royalty. The third paragraph further provides, “and in the event that the above described lease for any reason becomes cancelled or forfeited then and in that event none of the lease interests and none of the future rentals and bonuses on said land for oil, gas and other mineral privileges shall be owned by the said Grantee.” Plaintiff argues that the lease to the Dixie Oil Company was not “cancelled or forfeited.” It is stipulated that at the end of the primary term of the lease the rights of the lessee which had been assigned to the Stanolind Oil & Gas Company‘were released of record. We think that was an effective, cancellation of the lease within the meaning of the words used in Exhibit “A.” We note that Exhibit “A” specifically provides that “none of the lease interests . . . shall be owned by the said Grantee.” The words “lease interests” were not given any effect in the analysis of the instrument made by the trial court. We think they are quite important. We have been cited to no definition of the words as used in an instrument such as this, but it seems certain that they have some meaning. We think an appropriate meaning would be an interest which would authorize one to execute a lease. We note that in the printed form of the instrument, before the words “of the lease interests” were the words “an undivided,” and a blank, obviously designed to write the fractional share of the lease .interests. The words, “an undivided,” were deleted and the word “none” inserted. So,, the clause, insofar as what lease interests the grantee would have, was purposely changed so as to read “in the event that the above described lease for any reason becomes canceled or forfeited then and in that- event none of the lease interests . . . shall be owned by the said grantee.” The form was changed from that of writing a fractional share of the lease interests which the grantee would have to a provision by which the grantee had none of the lease interests. We think the meaning of that is that at the time Exhibit “A” was executed the parties agreed that the grantee should have no capacity or right to any lease interests in the property, that is, would have no right or authority to execute a lease upon the property. This thought follows through to the next clause, where the word “all” in the printed form was deleted and the words “none of the” substituted, so that it reads “and none of the future rentals and bonuses.” We think these provisions must be given effect and are a limitation upon the graM and conveyance in the first paragraph, even if that should be construed, standing alone, to be an unrestricted conveyance of minerals in place. And when we consider that paragraph four places a time limitation on the grant and conveyance made in paragraph one, as contended by plaintiff, and considering the instrument as a whole, it cannot bé said that the parties gave the force and effect to the language of paragraph' one which plaintiff now seeks to have placed upon it.
This interpretation of Exhibit “A” about ends this lawsuit. Capable and industrious counsel have cited a large number of cases,' but we find, as the trial court found, that none of them involves the interpretation of an instrument worded as is the instrument before us. They deal with decisions containing only a part of the instrument before us. We think it would serve no purpose to analyze each of these cases and point out in what respect it is not controlling here. Counsel have also argued another question which it is not necessary to consider in view of the interpretation we have given to the instrument before us. The pertinent instruments pertaining to each of the four tracts brought into the case by the' cross petition of defendants are the same as the one we have been considering ; hence there is no necessity of discussing them separately.
The result is that the judgment of the court must be reversed and remanded, with instructions to render judgment for defendants and sustain their view of the interpretation of Exhibit “A” and each of the like instruments pertaining to the other four tracts of land brought into the case by the cross petition of defendants. It is so ordered. ' ■ | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries alleged to have resulted from defendant’s negligence. The jury answered special questions and returned a verdict for plaintiff for $500, upon which judgment was rendered. Defendant has appealed and contends (1) that its demurrer to plaintiff’s evidence should have been sustained, and (2) that its motion for judgment on the answers to the special questions notwithstanding the general verdict should have been sustained.
The locale of plaintiff’s injury may be described as follows: The defendant operates a large retail mercantile store at the northwest corner of Minnesota avenue and Seventh street in Kansas City. The main building is a three-story brick facing south on Minnesota avenue with a width of 100 feet. The ground occupied by defendant extends through to State street on the north. On the northwest corner of Seventh and State streets there is a filling station, and directly west of it defendant has the use of a vacant lot where customers of the store may park their automobiles. The main building extends from Minnesota avenue north to about eighty feet of the north end of the lot. At the north end of the main building defendant has a one-story brick building about twenty-six feet wide and fifty feet long extending along Seventh street, which it uses as a place to service equipment it sells. This has large double doors, like those used on a garage, both on the east and west sides. These are about eighteen feet wide. Across the north end of the main building is a loading dock about thirteen feet wide and perhaps three feet high. The area of the lots north of the loading dock and west of its service room is a paved court extending north about seventy feet to State street. Along the west of this paved court is a cement wall about three feet high. There, is ,a driveway entrance into this court from the north on State street. The principal purpose of the court and loading dock is for trucks to drive in with merchandise to be unloaded on the dock, or for the loading of merchandise into trucks or cars to be sent away. Some customers of the store use the paved court, parking their cars on the west facing the wall, or if there is room on the south of the court facing the loading dock. At the west end of the loading dock there are steps from the dock down to the paved court. The loading dock has a canopy over it, and perhaps ten feet above it, as a protection from rain or snow, and about the center of this canopy there is a row of lights on the underside of it extending along the canopy from east to west. These are equipped with 100-watt electric light bulbs. On the parking north of the paved court and directly west of the driveway into it there is a street light, and across State street at the filling station there are floodlights. Good lights are used in the service station on the east side of the court, and when the west doors of the service station are open the lights aid in lighting up the court. When cars are parked on the paved court up next to the loading dock the lights in the ceiling at the loading dock cast some shadow back or north of the cars parked against the loading dock. '
In her petition plaintiff described the location of the premises and alleged that on April 20, 1940, about eight o’clock p. m., just after dark, she was a customer of defendant’s store and parked her car at the rear thereof and entered the store; “that while plaintiff was in said store defendant sold pipes to a customer [whose name plaintiff did not know] who had his car parked immediately back of said loading dock or in said parking space, controlled, owned and operated by the defendant as aforesaid, and that said defendant caused, permitted and allowed said customer to pile the pipes sold to him underneath his car, which was a truck. That these pipes were piled or swung from the truck four to six inches above the ground and that said truck was not there when plaintiff entered said building and no pipes were there. That she was in the store about three minutes to bring back her purchases and put them in her car when she tripped over the pipes” and fell, causing her injuries, which were described. She alleged defendant was negligent in that it caused, permitted and allowed its customers, and particularly the one in question, to swing or pile the pipes beneath the truck, parked as aforesaid, and so close to the surface of the ground as to be dan gerous to customers of defendant passing to and fro back of the parking space, and neglected to in any manner light the space or to warn persons in the use thereof of any dangers from the use of the parking space, and neglected to in any manner warn persons of any danger from passing to and fro across the same, and neglected to provide a safe exit for plaintiff from the store and a safe passage to her car parked in the rear thereof. Defendant’s answer contained a general denial and allegations to the effect that if plaintiff sustained any injury at the time and place in question the same resulted from her own lack of due care. At the beginning of the trial it was agreed between the parties that a reply had been or would be filed. The record does not show that a reply was filed.
Plaintiff testified that she was a resident of Kansas City and a customer of defendant and gave a general description of its premises. She had purchased from defendant merchandise which needed altering and went to get it the evening of April 20, 1940, about eight o’clock, just after darkness had fallen. She drove her car onto the parking court from State street and parked it facing the loading dock near the east end of it. Other cars were parked along the dock west of hers, and there were other cars within the paved court. She got out of her car, walked west behind the cars parked along the loading dock, and up the steps onto the loading dock, which was lighted by the lights from the overhead canopy, and into the store. She got her merchandise, which was ready for her, and went back to her car, following the route she had taken to go into the store. When she reached her car she found she did not have her car keys, and remembered she had laid them on the table where she had picked up her merchandise in the store. She promptly went back into the store along the same route she went the first time, found her keys where she had remembered leaving them, and started back to her car along the same route she had traveled previously. As she was walking behind the cars parked facing the loading dock she fell forward. She used the term “sprawled” in describing the way she fell. She was severely shaken up; her hands and one knee appear to have struck the pavement first. The hands were bruised, but became normal soon. One knee was cut, bled profusely, and still troubled her at the time of the trial. Since, if plaintiff is entitled to recover any sum, appellant does not complain of the amount of the verdict, we need not detail more fully her testimony, nor that of her physician, pertaining to her injuries. After she fell she sat up on the pavement and looking west saw that she had tripped over a roll of pipe. It looked to her like a bundle three to five inches in diameter of one-half inch water pipe. The pipes had been tied under a car in such a way that they were swung on the axle or some other under part of the car and stuck out four or five feet back of the body of the car. She testified that when she came back the second time, passing the same place she had passed three times, the roll of pipe was there. “It got there in that brief interval of time I was getting the keys. I do not have an idea how they got there.” She further testified that as she walked back the last time she “didn’t look at the ground.” While sitting on the ground as much as five or six feet from the pipe she had no trouble seeing it. She did not remember whether.the street light in the parking just west of where she drove into the paved court was burning, or whether the large doors of the service station which opened into the paved court were open, or whether there were lights in the service station, and further testified that it was dark along where she was walking; that the only lights she remembers seeing were those from the canopy over the loading dock. Plaintiff called no other witness to give testimony as to how her injuries occurred.
Defendant’s demurrer to plaintiff’s evidence was overruled and defendant offered the testimony of witnesses who saw plaintiff just after she fell and who had no difficulty in seeing the pipe sticking out back of the car and whose testimony tended to show that the place where she fell was lighted up much better than her testimony indicated. But that presented only a conflict of evidence. There was no testimony offered by defendant tending to show to whose car the pipe was attached, or how or when it got there, or that defendant or any of its employees knew the pipe was there or had anything to do with its being placed there.
The jury answered special questions as follows:
“1. When plaintiff returned to her automobile and learned that she had left her keys in the Montgomery Ward building, state approximately how long thereafter, in minutes, it took her to look for her kej's and return to the place where she fell. A. Five minutes.
“2. State whether plaintiff, immediately prior to her fall, could have seen the pipes had she looked. A. Yes. . . .
“4. If you find for the plaintiff, state what act or acts of negligence, if any, defendant was guilty of. A. Improper lighting.
“5. State how far away a person in the exercise of ordinary care could have seen the pipes at the time and place in question and under the circumstances there existing. A. 5 or 6 feet.”
Defendant’s motion for judgment upon the answers to the special questions notwithstanding the general verdict was overruled.
We turn now to the legal questions argued. It is clear to us that the demurrer to plaintiff’s evidence should have been sustained. It was alleged in plaintiff’s petition that defendant sold to a customer the pipes over which plaintiff fell and caused, permitted and allowed the customer to pile the pipes underneath his car. There is no evidence to sustain any of these allegations. The owner of the car under which the pipes were placed was not identified by name or otherwise. Neither was there any identity of the persons who placed the pipes where they were when plaintiff tripped on them. Plaintiff’s evidence discloses that the pipes had not been there long enough to give defendant constructive notice of their presence. It was alleged, and plaintiff’s testimony was to the effect, that the pipes got in that position within the brief space of time that she took to go into the store to get her keys — a period estimated by her as two or three minutes. Plaintiff was' not injured by any defect in the pavement or the steps, or by anything shown by evidence to have been in the custody or control of defendant. Defendant was not an insurer of plaintiff’s safety. It did owe her the duty of providing a reasonably safe place for her to go from the car to the store and return. That such a place was furnished is demonstrated by the fact that plaintiff had made three trips over the same route without harm.
We reach the same ultimate result in the case if we consider defendant’s motion for judgment on the answers to the special questions notwithstanding the general verdict. The jury found that it took plaintiff approximately five minutes to go from her car into the store for her keys and return to the place where she fell. This demonstrates that the pipes had been there but a very short time. The jury found that plaintiff could have seen the pipes if she had looked immediately prior to her fall. She testified that she did not look. Plaintiff owed a duty to herself for her own safety — a duty which she did not perform. It was alleged that defendant had neglected “to in any manner light” the space where plaintiff was walking. That allegation was not sustained by' plaintiff’s testimony. She said the lights on the canopy over the loading dock were burn ing. The jury did not find a lack of light; it found «‘improper lighting.” What view the jury had of what would have been a proper lighting of the place is left to conjecture. No issue had been raised in the pleadings as to what would constitute proper lighting of the paved court. It seems reasonably clear from the evidence produced by defendant that there was much more light than plaintiff’s evidence tended to show. We are not so much concerned here with the quantity of light, for the darker the place was the greater duty was placed upon plaintiff to use due care for her own safety. The jury specifically found that under the circumstances existing there at the time, a person in the exercise of ordinary care could have seen the. pipes when five or six feet away from them. She was walking; she was not hurrying, and it is reasonable to say that she could have stopped promptly. The findings make it clear that plaintiff did not exercise due care for her own safety. Had she done so she would have sustained no injury. The result is that these findings conflict with the general verdict in plaintiff’s favor. Under the statute (G. S. 1935, 60-2918) the special findings control in such a case. See, also, Marley v. Wichita Transportation Corp., 150 Kan. 818, 96 P. 2d 877; Smith v. Quivira Land Co., 153 Kan. 794, 113 P. 2d 1077; Sayeg v. Kansas Gas & Electric Co., 156 Kan. 65, 131 P. 2d 648, and cases cited therein.
Appellee in this court stresses the fact that defendant filed no motion for a new trial in the court below and contends that it is not entitled to be heard upon the questions here presented. The point is not well taken. Our statute (G. S. 1935, 60-3302) specifically makes a ruling upon a demurrer an appealable order. The ruling upon a demurrer is a ruling upon a question of law, and a motion for a new trial is not necessary in order for this court to review the ruling. See Rierson v. Southern Kansas Stage Lines Co., 146 Kan. 30, 33, 69 P. 2d 1; Parsons v. State Highway Comm., 146 Kan. 476, 481, 72 P. 2d 75; Kotwitz v. Gridley Motor Co., 148 Kan. 676, 84 P. 2d 903, and cases cited therein.
A motion for judgment upon answers to the special questions notwithstanding the general verdict presents a question of law, and if the same is overruled and judgment rendered' on the verdict defendant may appeal without the motion for a new trial. In Smith v. Tri-County Light and Power Co., 120 Kan. 354, 243 Pac. 331, speaking of rulings upon such a motion, the court said:
“A ruling of the court upon this motion, if it results in a judgment, is an appealable order. If the motion is sustained and judgment rendered accordingly, the plaintiff may appeal. If it is overruled and judgment rendered on the general verdict the defendant may appeal.” (p. 354.)
The result'is that the judgment of the court below must be set aside with directions to enter judgment for defendant. It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
This is a companion case to that of State v. Vinyard, ante, p. 66, 159 P. 2d 493. Bill Vinyard and Ray Herschberger were charged jointly with larceny of two white-faced steers. The separate jury trials of both of the defendants resulted in verdicts of guilty. A statement of the general facts pertaining to the convictions of both the defendants is set forth in our opinion in the case of State v. Vinyard, supra. Consequently, we will, not review them again in this opinion except in such instances as the evidence may differ materially in the two cases and it becomes necessary to review it in considering asserted errors. The assignments of error are as follows: “(1) Court erred in refusing to grant a continuance and ordering defendant to go to trial. (2) Court erred in instructing jury. (3) Court erred in refusing to give requested instruction submitted to the court by defendant. (4) Court admitted illegal testimony against defendant. (5) Court erred in overruling motion for new trial. (6) Court erred in permitting witness with a deadly weapon, a revolver on him to over objection of defendant, testify, to material matters in this case. (7) Court erred in its rulings.”
The first specification of error to the effect that the defendant should have been granted a continuance cannot be sustained be cause the statement contained in the affidavit as to what the absent witness would testify was admitted as the deposition of the absent witness and thereupon the defendant announced ready for trial. G. S. 1935, 60-2934, provides that if the adverse party consent, that on the trial, the facts alleged in the affidavit shall be read and treated as a deposition of the absent witness, no continuance shall be granted on the ground of the absence of such evidence. The journal entry clearly shows that compliance was made with the foregoing section, and therefore, the court did not err in proceeding in accordance with the statute.
Assignment of error No. 2, to the effect that instruction No. 1 is wrong, cannot be sustained because the argument is based upon a factual inaccuracy. The record clearly discloses that a preliminary hearing was held on November 10, 1944, at the conclusion of which the court found that the crime as charged in the complaint and warrant had been committed and there was probable cause to believe that the defendant in the present case and his codefendant committed such offense in Logan county, Kansas. The claimed error as to instruction No. 6 cannot be sustained because no complaint of the instruction was made at the time of the trial and the same instruction was approved in the case of State v. Vinyard, supra, for the reasons therein set forth. Assignment of error No. 3 is not supported by argument. We find no evidence in the record which compels the giving of any of the requested instructions. Our attention is particularly called to requested instruction No. 4. The substance of requested instruction No. 4 was covered in the court’s other instructions. Requested instruction No. 4 obviously emphasized the theory of the defense to the effect that agents of the owners consented to the taking of the property. The court’s instructions set forth that before the defendant could be found guilty the cattle must have been taken without the consent of the owner and with the intent to deprive the owner thereof permanently. The first paragraph of the syllabus in the case of State v. Danley, 125 Kan. 111, 263 Pac. 1051, reads as follows:
“On the trial of a criminal action, it is not error to refuse to give a special instruction requested by the defendant directing attention to a particular fact disclosed by the evidence and stating1 to the jury that it may take that fact into consideration, where it is not shown that the court did not tell the jury to consider all the evidence in determining the guilt or innocence of the defendant.”
Under the instructions as given the attorney for the defendant could have, and probably did argue the theory of the defense elaborated and emphasized by requested instruction No. 4. The jury apparently did not believe the testimony offered by the defendant in support of the theory.
Counsel for the defendant stresses the point that the evidence in this case clearly shows that the defendant was the victim of an entrapment and that agents of the owners of the cattle aided in the detection of the crime and consequently, inferentially consented thereto. We have given careful consideration to the theory advanced by defendant’s counsel. Before such a defense exonerates an accused, it must be shown that the owners, in furtherance of a conspiracy to entrap, consented to the taking of the property and that the defendant relied thereon. Unfortunately for the defendant, his own evidence may have warranted the jury in believing that no such consent was given. The defendant did not testify when apprehended that he thought he was taking property which belonged to the true owners, with their consent. The defendant’s evidence was to a contrary effect. When the defendant and Vinyard were apprehended, one of them stated that they were attempting to haul some steers which belonged to a man by the name of Ware, not to Purvine and Surratt, who were the owners named in the information. In addition the testimony develops that the defendant signed two written statements. One of them set forth that Vinyard asked the defendant to haul the cattle for Vinyard and that he planned the theft. The other written statement contained the following: “I knew we were stealing the steers and we intended to butcher them. . . . This is the first time I ever stole any cattle. . . .” In view of such written statements, possibly it was difficult for the jury to believe that the defendant, even from implication, thought that he was hauling the cattle with the consent of the owners. Counsel for the defendant cites in support of the theory of the defense the case of State v. Stickney, 53 Kan. 308, 36 Pac. 714. As we read the case it is authority against the theory of the defendant. We quote from the cited case:
. . The fact that Birchfield [the owner of the building] was willing to assist in and facilitate the detection and arrest of a criminal does not amount to a consent to the commission of the crime, nor will the mere fact that there was a detective with and apparently assisting appellant in the commission of the crime constitute a defense.” (p. 311.)
We are unable to say as a matter of law that the theory of the defense was not presented under adequate and proper instructions. Consequently, assignment of error No. 3 cannot be sustained.
The defendant complains in assignment of error No. 4 of illegal testimony being introduced against the defendant. In support of such contention counsel for the defendant calls our attention to the fact that the county attorney, who prosecuted the defendant, was permitted to testify under oath that he wrote on a typewriter a statement, which was in the nature of a confession, signed by the defendant, and introduced as plaintiff’s exhibit 2. The county attorney’s testimony to such extent was cumulative as another witness had testified to the same effect. The county attorney proffered his testimony only after a question had arisen whether the last statement in the signed confession had been written before or after the defendant signed it. The county attorney later offered himself as a witness for the purpose of showing that the instrument had been in his possession at all times since it was signed and that it was typed in its entirety before the signing. The court sustained an objection to the last part of such proffered testimony. Consequently, it will be assumed that the jury disregarded it. Incidentally, the part of the statement in controversy was only to the effect that the statements above it were “just as right as the dickens and just as it was” and that the defendant made the statement of his own free will. So far as the record discloses there is no testimony on tffe part of the defendant that he did not sign the entire statement. Therefore, it can hardly be asserted that the reference to the part- of the statement in any manner was prejudicial to the rights of the defendant. In support of the asserted error defendant’s counsel cites the case of State v. Ryan, 137 Kan. 733, 22 P. 2d 418. Reference to such decision discloses that such case was not reversed because counsel for the state testified on a material disputed point but was reversed for other reasons. The opinion merely holds that it is better practice for a county attorney to withdraw from a case when it becomes necessary for him to testify to evidence which contradicts, in some particulars, the evidence of the defendant. We have read carefully the abstract of the defendant’s testimony and it contains nothing to the effect that the last paragraph of the statement was not in it when he signed it. The defendant simply testified that he did not read any statements signed by him because he couldn’t read without his glasses. Under such circumstances it seems to, us that whether the last part of the statement was in it at the time it was signed becomes immaterial.
Defendant’s fifth assignment of error, to the effect that the court erred in overruling the motion for a new trial, has been abandoned. No argument appears in the brief to support it. The sixth assignment of error is that the court erred in permitting the witness to testify over the objection of the defendant when such witness was carrying a revolver on his person. The witness was the deputy or undersheriff of Logan county. He was the same officer who had arrested the defendant and testified that he had a gun on him the night of the arrest. He was asked whether he had the gun on his person at the time he was testifying and he replied in the affirmative, whereupon counsel for the defendant requested that the witness turn the gun over to the court. Following such request the court stated: “The court thinks the fears of counsel are entirely unfounded. Proceed.” Counsel for the defendant then refused to proceed any further with their questioning of the witness,, and the court then said: “Very well. Is the state through with the witness?” Defendant’s counsel again insisted on their right to examine the witness but refused to do so until he was disarmed and the court further said: “The court doesn’t think it is out of the way or improper in any sense of the word for an officer of the law, a peace officer, to take the witness stand with the usual arms or implements of defense on him.” In support of their contention that the court’s ruling was incorrect and its comments were prejudicial counsel for the defendant cites the case of Hamilton v. Harrison, 126 Kan. 188, 268 Pac. 119. The question whether a peace officer can testify properly with a gun on his person was not involved in the cited case. Certain comments made by the court in the cited case were considered and it was held that comments made by the court before the jury regarding the defendant’s counsel, to the effect that such counsel was not acting in good faith and that the court was surprised that defendant’s counsel made such an objection, were prejudicial. In the present case nothing of the kind occurred and the cited case does not support the contention made by defendant’s counsel.
The final assignment of error, reading: “Court erred in its rulings,” is really too vague to constitute an assignment of error and since there is no showing that any such possible trial errors were called to the attention of the court in the argument on the motion 'for a new trial, we cannot review them upon appeal. (See State v. Woodman, 127 Kan. 166, 272 Pac. 132, and State v. Cross, 144 Kan. 368, 59 P. 2d 35.) We have, however, considered the contention made by defendant’s counsel, in arguing the assignment of errors, relative to a discrepancy appearing in the spelling of the name of one of the owners of the cattle. The record clearly 'shows that the identity of the owners did not confuse or mislead the defendant, or his counsel, in the preparation of his defense. There is no showing made that the defendant was prejudiced in any manner by any discrepancy in the name.
The judgment of the trial court is affirmed. | [
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Per Curiam:
The questions presented in this action have been fully considered and discussed in In re Insurance Tax Cases, decided September 15, 1945, ante, p. 300, and this action is controlled thereby.
The writ of mandamus sought is denied. | [
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The opinion of the court was delivered by
Thiele, J.:
The question for decision in this appeal is the validity of a judgment against a garnishee.
On January 20, 1944, the plaintiffs commenced their action against the defendant Trapp to recover on an account stated. On the same day a summons was issued for the defendant Trapp. The sheriff’s return shows that on the same day he summoned the defendant “Charles E. Trapp by serving George Squibb, Atty.” by delivering him a true copy of the summons. On the same day the plaintiffs filed their affidavit for garnishment, naming Sylvester Allegro as one of the garnishees. A garnishee summons was issued on the same day and on that day it was served upon Allegro personally and upon the defendant Trapp “By Serving Geo. Squibb, Atty. Per., 1-20-44.” On January 31, 1944, Allegro filed his affidavit denying liability. On February 8, 1944, the plaintiffs served their notice on Allegro to take issue on his answer. On April 7, 1944, an answer was filed signed “Charles E. Trapp by Geo. H. Squibb, Union National Bank Building, Wichita, Kansas. Geo. H. Squibb, Attorney for Defendant,” in which he admitted the indebtedness as alleged in the petition. The cause was set for trial on April 18, 1944, but it is not clear that either Trapp, Squibb or Allegro had any notice thereof. It was then continued to April 20 and on that day the court rendered judgment in favor of plaintiffs and against Trapp upon the pleadings and, as stated in the journal entry, which showed that the defendant and the garnishee did not appear, plaintiffs introduced evidence and the court found that Allegro was indebted to Trapp in the sum of $1,550.93. Thereafter on May 3, 1944, upon motion of plaintiffs, an order was made for Allegro to appear and answer concerning his property. On May 10, 1944, Allegro filed his motion to vacate the judgment against him, the details of which need not be set forth. A hearing was had and on July 21, 1944, the court denied the motion, from which ruling Allegro appealed to this court. Following the trial court’s ruling further proceedings were had to require Allegro to appear and answer concerning his property, and an application for the appointment of a receiver was filed. Allegro filed his response to the application for appointment of a receiver and renewed his motion that the judgment against him be set aside. It contained other grounds than were asserted in his first motion, but we do not need to set forth the details. This motion was presented to the court, which heard evidence thereon, and on January 3, 1945, the motion was denied. Allegro duly appealed from this ruling.
In view of our conclusions hereafter expressed, it is not necessary that we discuss the two appeals separately, or that we follow out in detail the specifications of error. The principal question is whether the trial court erred in rendering any judgment against the garnishee.
Although the motions filed by the appellant did not clearly and specifically raise the question, it is the duty of this court to inquire whether the trial court had jurisdiction. (See Shively v. Burr, 157 Kan. 336, 139 P. 2d 401, and cases cited.)
In any action, it is essential that the trial court have jurisdiction not only over the subject matter thereof, but of the parties to the action, and where the statutes require that the parties be brought before the court, the methods prescribed must be followed. Appellant contends that the service of summons upon the defendant Trapp was not good, and had no answer been filed on Trapp’s behalf, the question would require full consideration and decision. We do not find it necessary to discuss and decide the question for a reason not specifically asserted, but which does pertain to the question of the trial court’s jurisdiction over the garnishee Allegro.
In State Bank of Dodge City v. McKibben, 146 Kan. 341, 344, 70 P. 2d 1, it was said:
“A proceeding in garnishment is a special and extraordinary remedy, and it must be strictly followed and diligently pursued, otherwise it will not be' given effect to reach the assets of a debtor in the hands of a third party. (Hutchinson v. Nelson, 63 Kan. 327, 65 Pac. 670; 28 C. J. 25.)
“In our view it was a prerequisite to the efficacy of the garnishment that a summons or other process of equal potency should have been served on judgment debtor McKibben to apprise him of the institution of the garnishment proceedings. . . .” (See, also, Rafter v. Hurd, 133 Kan. 505, 300 Pac. 1078.)
The code of civil procedure gives the right to proceed by garnishment, either at the time of issuing summons or at any time thereafter before final judgment in any action founded upon contract, by filing the affidavit and bond prescribed. (See G. S. 1935, 60-940 to 60-942.) Those sections are the only ones giving the plaintiffs the right to proceed in the instant case. Under section 60-943 it is provided that when an affidavit in garnishment is filed, a garnishee summons shall be issued by the clerk “and served upon the de fendant or his attorney of record, and each of the garnishees.” In the instant case a garnishee summons was issued and served upon the garnishee. The only service upon the defendant Trapp was by serving “Geo. Squibb, Atty.,” on January 20, 1944. Under the proj visions of the statute the service had to be upon the “defendant or his attorney of record.” The language of the statute excludes any service other than as mentioned, and precludes service on defendant by serving his attorney other than his attorney of record. It is clear from the return of the sheriff on the garnishee summons that the summons was not served on the defendant Trapp personally, and it is equally clear from the record that it was not served upon his attorney of record. Trapp, under any circumstances, had no attorney of record prior to the time his answer was filed on April 7,1944. When the trial court entered judgment against the garnishee on April 20,1944, the defendant Trapp had had no legal notice that any garnishment proceedings had been instituted. As no adequate service of garnishee summons had ever been had, the court was without jurisdiction to render judgment against the garnishee, its judgment was a nullity and it must be set aside. It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
This appeal involves the right of a probate court to approve or disapprove a final receipt. Such court refused to approve a receipt. The district court, on appeal, sustained the probate court and the case reaches us on appeal from the judgment of the district court, reading as follows:
“. . . The court after having heard the evidence and being fully advised in the premises, finds that the appeal involves the sole question of law, to which all parties and their attorneys agree and stipulate in open court, of whether or not an attorney for a claimant in a decedent's estate, while likewise serving as administrator of the said estate, may exercise the ordinary prerogative of an attorney and receipt for a judgment due his client where the amount of the said judgment was received from himself in a trust capacity as administrator of a decedent’s estate.
“The court after having heard the arguments and authorities of counsel finds that the order of the Probate Court appealed from should be sustained.
“Whereas, it is considered, ordered, adjudged and decreed that the order of the Probate Court of Cowley County in the above entitled estate in which said court refused to approve the final receipts of the said administrator, Prank G. Theis, and overruled the motion of the said administrator for the discharge and release of said administrator and his surety, be and is hereby sustained.”
Counsel for the appellant desire us to decide the question within the narrow confines of the recital in the journal entry. This court is not inclined to favor limitation of the scope of its consideration by stipulations even in instances wherein such stipulations have been entered into fairly and openly by counsel for the respective parties. If such a practice were to be approved, an appellate court might find itself in a position of being unable to consider whether rulings of district courts were correct for any reason and the district, courts might be imposed upon by strict construction of stipulations, in the composition -of which the district courts were not consulted. Primarily, appellate courts are concerned with the application and establishment of endurable and enduring principles of law and canons of conduct but the application of the same to all the facts in a given case is of significant importance in determining whether established exceptions to general rules are controlling or whether new exceptions must be created. For the reasons given, and others, this court will not bind the range of.its review to stipulated abstract questions of law.
In the present case Frank G. Theis was appointed administrator of the estate of Joseph C. Williams. Before his appointment he had been employed as the attorney for Willie B. Williams, who claimed an interest in the estate as the widow of the named decedent. The mother of Joseph C. Williams, to wit: Florence Williams, claimed that Willie B. Williams was not the widow of the decedent. A written compromise of such controversy was entered into between Florence Williams and Willie B. Williams, according to the provisions of which it was agreed that the assets of the estate of Joseph C. Williams were to be divided equally between Florence Williams and Willie B. Williams. It was further agreed by such parties, subject to. the approval of the probate court, that Frank G. Theis would be appointed administrator of the estate and that another attorney, George W. Stanley, who had represented Florence Williams in the negotiations, should act as attorney for the administrator. According to the compromise agreement such an arrangement was made in order to avoid.added expense. The probate court evidently approved of the provisions in the compromise agreement and made the appointments in accordance therewith. Distribution of the estate also followed in accordance with the agreement and Frank G. Theis performed all of the duties incident to the administration of the estate. In connection with the closing of such administration, the probate court entered a final decree of distribution, which concluded as follows:
“And it is therefore Considered, Ordered, Adjudged and Decreed, that said administrator pay to Florence Williams, the sum of One Thousand Seven Hundred .eighty-eight and 23/100 ($1,788.23) Dollars and to Willie Williams the sum of One Thousand One Hundred Fourteen and 88/100 ($1,114.88) Dollars.
“And it is further Considered, Ordered, Adjudged and Decreed, that said administrator file proper receipts with this court of the payment of the amounts above-specified and that upon the filing of said receipts that this estate be forever closed and the administrator and his bondsman be forever discharged.”
The discrepancies in the respective amounts referred to arise by reason of prior disbursements. In furtherance of compliance with such final decree of distribution, Frank G. Theis signed a receipt and filed it with the probate court but the receipt was not signed personally by Willie Williams; it ivas signed “Willie Williams by Frank G. Theis, Her Attorney of Record.” Frank G. Theis then filed a motion requesting the probate court to approve the final receipt and order his discharge and the discharge of his bondsman. For some reason not shown in the record the probate court found that the motion should be overruled and that the discharge of the administrator should be refused. From such an order Frank G. Theis appealed to the district court, and as before shown the district court also overruled the motion of the administrator for a discharge and sustained the order of the probate court.
Counsel for the respective parties agree, with commendable candor, that as a general rule, under ordinary circumstances, an attorney who has recovered a judgment for his client has authority,, by virtue of such employment, to receive payment on such judgment and may enter satisfaction of the same.
The record in this case does not disclose any improper conduct of any character on the part of Frank G. Theis, either in his capacity as attorney for Willie Williams, or in his capacity as administrator of the estate of Joseph C. Williams. In fact, the record does not disclose the nature of any controversy which may have arisen between Frank G. Theis and Willie Williams involving the amount of any fees which may have been due him. Comments in the briefs filed by respective counsel indicate that such a controversy probably existed but nothing in the record warrants our giving any consideration to the same.
Counsel for the appellant contend that the efforts of Frank G. Theis in his capacity as administrator virtually had ceased because there remained nothing more for him to do except to acquire his formal discharge. It is therefore urged that no actual impropriety arises by reason of the fact that Frank G. Theis served in two capacities and that there is nothing about the dual relationship in this case which disqualifies Theis in any way from being in the position of any other attorney who might have represented Willie Williams. Such being true, it possibly might follow that in answer to the abstract question it could be held that Frank G. Theis could execute a proper receipt and thus satisfy a judgment due his client. We do not answer such question, however, because a second question is raised by the appeal, which, in the opinion of the court, controls the controversy. Such question is — Is a probate court or a district court, on appeal, compelled to accept a receipt executed only by an attorney under the circumstances in this case? If the probate court had approved the receipt signed by Theis and closed the estate, we do not now say that such a receipt would not have been binding upon Willie Williams insofar as her right to receive her part of the assets of said estate was concerned. As before stated, however, we are faced with the question of whether the probate court could be forced to approve such a receipt.
Reference to the record discloses that the final decree of distribution specifically directed that the administrator was ordered to pay to Willie Williams the sum of $1,114.88 and such order further provided that when the administrator filed proper receipts then the estate would be forever closed and the administrator and his bondsman forever discharged.
G. S. 1943 Supp. 59-1718, provides as follows:
“Whenever any fiduciary . . . has complied with all the orders and decrees of the court and with the provisions of law, and has otherwise fully discharged his trust, the court shall finally discharge him and his sureties.”
G. S. 1943- Supp. 59-301, prescribes the jurisdiction and general powers of probate courts. That statute, in part, reads:
“The probate courts . . . shall have original jurisdiction:
' “(3) To direct and control the official acts of executors and administrators, to settle their accounts, and to order the distribution of estates.
“(12) And they shall have and exercise such equitable powers as may be necessary and proper fully to hear' and determine any matter properly before such courts.”
G. S. 1943 Supp. 59-302, reads:
“The probate courts, in addition to their general jurisdiction, shall have power:
“(4) To compel throughout the state the performance of any duty incum-. bent upon any fiduciary appointed by or accounting to such courts.
“(8) To order any fiduciary to surrender and deliver property to his successor or to distribute it.”
As hereinbefore stated the record does not disclose why the probate court refused to approve the receipt filed by Frank G. Theis. From a technical standpoint it may be observed that the probate court directed that the administrator was to pay the money to Willie Williams — not to himself as attorney for her. Entries of judgments, however, usually provide that the clients and not the attorneys shall recover the amount thereof. Consequently such a technical disposition of the question would be too narrow and impractical. Regardless of the reason which may have motivated the probate court in refusing to approve the receipt and in denying the motion for final discharge, it must be noted that the present probate code clearly gives to probate courts the right to control official acts of administrators, to settle their accounts, to compel the performance of any duty incumbent upon any fiduciary and to distribute property. Obviously, the filing of proper receipts is incidental to the final discharge of any administrator and the probate court has equitable powers. Can it be said that' a probate court should be required to approve any receipt which may be filed by an administrator or other fiduciary? If so, a fiduciary might tender a receipt which the probate court had reason to believe was a forgery and nevertheless the probate court would be required to approve it.
In addition to the statutory authority vested in the probate courts to pass upon all questions connected with the closing of estates, it should be noted that courts generally have disciplinary jurisdiction over counsel appearing before them, as such counsel are considered to be officers of the courts and that such disciplinary jurisdiction can be exercised not only for the purpose of enforcing legal rights but for the additional purpose of enforcing honorable conduct on the part of the courts’ own officers. (See Hess v. Conway, 92 Kan. 787, 797, 142 Pac. 253, 4 A. L. R. 1580.)
By reason of the broad powers given to the probate courts to control the administration of estates and the general right of courts to direct the action of attorneys, this court is unable to say that the judgment of the district court was erroneous. The ruling was within the discretion of the court and we cannot say that the record presents a clear case of abuse of discretion.'
The question before us does not necessitate a discussion as to the advisability of attorneys acting in dual capacities or as to the relative rights of attorneys and clients. It might be noted in passing, however, that ordinarily disputes between attorneys and clients should not be settled by probate courts. Such a practice would delay the closing of estates. Any question as to whether Frank G. Theis has a valid lien upon any funds which may have come into his hands as attorney for Willie B. Williams must remain open as this appeal presents no record evidence relative to such a controversy.
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a former wife of a testator to obtain a construction of his will. Judgment was for plaintiff and only one defendant, an intervenor, appeals.
The action was instituted in the district court of Marion county against E. M; Strong, a testamentary trustee, to obtain an accounting of his trusteeship pertaining to the rents and profits of a particular tract of land involved in this action; to have the trust declared lapsed and for a decree declaring title to the land involved to have passed to plaintiff under the residuary clause of the will.
The Board of Trustees, of the Kansas Conference of the Church of the United Brethren in Christ, referred to by the parties as the mother or parent church, was permitted to intervene and set up its claimed rights under the will. In its answer it set forth, among other things, various provisions of its constitution and discipline which are conceded to be correctly stated. They will be considered later.
Paragraph eight of the will is primarily involved and reads:
“Eighth. I give and devise' the following described real estate situated in Butler County, Kansas, towit:
[Description of two quarter sections of land in Butler county.]
to E. M. Strong of Bums, Marion County, Kansas, in trust, to manage, control, sell, invest the proceeds thereof and reinvest the same and to pay the income from said property and from the proceeds thereof, as it accrues, to The United Brethren in Christ Church Association at Burns, Marion Couney [county], Kansas, and I hereby expressly authorize and empower said trustee and his successors in trust to sell and convey said real estate or any real estate that may be acquired by said trustee or his successors in trust in the execution of this provision of my will. It is my will and I hereby direct that said trustee and his successors in trust shall report to and be under the supervision of the District Court of Marion County, Kansas.”
The residuary clause also relied upon by appellee reads:
“Ninth. I give and devise to my wife Caroline E. Smith, all the rest, residue and remainder of my estate not otherwise herein provided for.”
The action was tried on the following agreed statement of facts:
“An agreed statement of facts upon which the issues that are joined by and between plaintiff herein and defendant, the Board of Trustees of the Kansas Conference of the Church of the United Brethren in Christ, is to be submitted to the above named Court.
“Plaintiff was married to one Isaac N. Smith more than 50 years before the commencement of this action, and continued to live and abide with him as his wife in the City of Burns, Marion County, Kansas, until the death of said Isaac N. Smith, on April 27, 1927, in the City of Burns, Marion County, Kansas.
“At the time of plaintiff’s marriage to said Isaac N. Smith, said Isaac N. Smith possessed little or no property, and the property of which he died seized was accumulated by the joint efforts of said plaintiff and said Isaac N. Smith.
“Said Isaac N. Smith, on March 20, 1926, did make, execute and publish his Last Will and Testament in said City of Burns, Marion County, Kansas, a true and exact copy of which is attached to plaintiff’s petition filed herein.
“For more than 30 years before March 20, 1926, Isaac N. Smith was and had been a resident of Bums, a city of the Third Class, located in the southern part of Marion County, Kansas, formerly known as the City of Saint Francis.
“Isaac N. Smith died at Burns, Kansas, on April 27, 1927. Thereafter, the Will of said Isaac N. Smith was legally probated by the Probate Court of Marion County, Kansas, on May 20, 1927, at which time plaintiff was present and accepted under the terms of said Will, and acted as Executrix of the same in said Probate Court of Marion County, Kansas. Said estate of Isaac N. Smith was finally settled in the Probate Court of Marion County, Kansas, on July 24, 1928. /
“At the time of making said Will by said Isaac N. Smith, as aforesaid, and at the time of the death of'said Isaac N. Smith, as aforesaid, he was seized of the following described property:
[Description of two quarter sections of land in Butler county.]
“After the death of said Isaac N. Smith, and the probation of his Will, plaintiff continued to live and reside at Burns, Kansas, and was married to Joseph Shannep, and is now residing at Burns, Marion County, Kansas.
“On March 7, 1892, there was organized at Burns, Marion County, Kansas, a religious society known as the United Brethren in Christ Church Association at Bums, in Marion County, Kansas. There was issued to said religious organization, a charter by the State of Kansas, stating that the number of the Trustees shall be five and the names and residences of those who are appointed for the first year are: Simon Crites, L. Horr, Leonard Pfouts, H. C. Starbuck, F. A. Baxter, all of whom resided at Burns, Kansas, and their successors in office shall be elected by the Quarterly Conference having jurisdiction over said property, according to the discipline of the said United Brethren in Christ Church.
“All of said above named Trustees have died.
“Said United Brethren in Christ Church Association at Bums, Kansas, after its organization and at the time of making the Will of said Isaac N. Smith and probation of the same as herein stated, was functioning as a religious association at Burns, Kansas. While so functioning and before making said Will by said Isaac N. Smith and the probation of the same, said United Brethren in Christ Church Association at Burns, Kansas, erected a church in the City of Burns, Kansas, and acquired a parsonage.
“At such time, said United Brethren in Christ Church Association at Bums, Kansas, functioned as a religious organization, holding services in said church building and other services and meetings in accordance with the teachings, doctrines and the faith of the United Brethren in Christ Church.
“The United Brethren in Christ Church Association at Burns, Kansas, was affiliated with the Kansas Conference of the United Brethren in Christ Church.
“For more than three years before the commencement of this action, said United Brethren in Christ Church Association at Burns, Kansas, disbanded and ceased to function at Burns, Kansas, or any other place, and there were no Trustees of said association existing at said last mentioned time or any other officers who had or pretended to have charge of said association.
“Said association during said last mentioned period and some time prior thereto, ceased to hold anjr meetings or services of any kind in its church at Burns, Kansas, or in the City of Burns, Kansas.
“Said church building and parsonage so located in the City of Burns, Kansas. so constructed and acquired by said association as aforesaid, were aban doned and said association entirely ceased to function and became disbanded and had no existence during the time last herein .mentioned.
“After said United Brethren in Christ Church Association at Burns, Kansas, had abandoned said church and buildings as aforesaid, and ceased to function as a religious organization, the Kansas Annual Conference of the Church of the United Brethren in Christ, at its session in Wichita, Kansas, on Wednesday, August 25, 1943, under its Constitution, Rules and Discipline set forth in its answer filed herein, recognized that said United Brethren in Christ Church Association at Burns, Kansas, had abandoned said church and parsonage at Burns, Kansas, disbanded and ceased to function as such association, by passing a resolution so recognizing that said United Brethren in Christ Church Association at Burns, Kansas, had disbanded and ceased to exist, which resolution reads as follows:
" 'Resolution of Buens Church and Burns Church Property.
“ ‘Whereas: the Burns Church of the Burns-Summit Charge is in a disorganized state and
“ ‘Whereas: the Summit Church, Burns-Summit Charge is disorganized and
“ ‘Whereas: some years ago a bequest was made to the United Brethren in Christ Association at Burns, Marion County, Kansas, by I. N. Smith and
“ 'Whereas: the Board of Trustees of Kansas Annual Conference-would like to safe-guard this bequest and have the future status of this bequest determined by the Court.
“ ‘We recommend that the Burns Church be recognized as disbanded, and the property abandoned and as per Discipline 1941, Chap. 5, Sec. 1, Art. 5, and that the Board of Trustees be authorized to rent, lease, sell or otherwise dispose of the parsonage property at Burns, located on Lot 4, Francis Addition, City of Burns, Marion County, Kansas, and the Church property and contents located on Lot 77, 250 Washington St., City of Burns, Marion County, Kansas, and that the Board of Trustees of Kansas Annual Conference be authorized to petition the District Court of Marion County, Kansas, to determine the disposition of the I. N. Smith bequest in case the Burns United Brethren Church Association be formally disbanded. Further, that said Court be petitioned by said Board that these Funds as they accrue be paid either to the Board of Trustees, of Kansas Annual Conference or the Summit Church, Bums-Summit Charge, Kansas Conference of the Church of the United Brethren in Christ.
“ ‘C. V. Priddle, Secretary of the Board of Trustees.’
“About three years prior to the passage of said resolution and after said United Brethren in Christ Church Association at Burns, Kansas, had disbanded and ceased to function, said defendant Board of Trustees of the Kansas Conference of the United Brethren in Christ took possession of said church and said parsonage so erected and constructed by the United Brethren in Christ Church Association at Burns, Kansas, rented and leased said buildings and property, and appropriated the money for the rent thereof.
“After the passage of said resolution and before the commencement of this action, said defendant Board of Trustees of the Kansas Conference of the United Brethren in Christ sold and conveyed said church building to an organization known as the Mennonite Church and said Board of Trustees of the Kansas Conference of the United Brethren in Christ sold and conveyed said parsonage to a man by the name of Hart, and appropriated the proceeds of the sale of said buildings.
“Said defendant Board of Trustees of the Kansas Conference of the United Brethren in Christ is an ecclesiastical body which was originally formed by the union of many churches about the year 1800 a. d., and since then said organization has conducted its affairs under a constitution and certain rules and Church law promulgated in the form of a Discipline. All of the quotations set forth in the answer of defendant Board of Trustees of the Kansas Conference of the United Brethren in Christ are correctly quoted from the Discipline of said organization.
“Immediately after the Will of said Isaac N. Smith was made and probated as hereinbefore set forth, the defendant herein, E. M. Strong, who is and was a resident of Marion County, Kansas, took possession of the half section of land hereinbefore described, under and by virtue of the trust sought to be created by said W'ill of said Isaac N. Smith, and is now and has been in possession of said premises.
“Pursuant to the authority so granted by its Constitution, the General Conference of this answering defendant, did in and about the year 1853, create the Kansas Conference of such church, and thereafter, this defendant was incorporated under the Laws of the State of Kansas, and this answering defendant so organized has since said time and is now carrying out the various duties under said Constitution and Discipline and under the supervision of the General Conference aforesaid.
“Said defendant E. M. Strong has rented said premises, collected the rent, paid the taxes thereon, and from time to time before said United Brethren in Christ Church Association at Bums, Kansas, became defunct and ceased to exist, paid such rent after deducting the taxes and upkeep therefrom, to said United Brethren in Christ Association at Burns, Kansas.
“Defendant E. M. Strong, as Trustee, from time to time rendered an account in writing to the District Court of Marion County, Kansas, of the renting of said premises and the disposition of the rent paid to him.
“Defendant E. M. Strong, has never received any pay for managing said premises, renting and collecting the rent therefor, and he now has on hand approximately $700.00 collected by him for the rent of said half section of land, which land he is now in possession of.
“At the time said United Brethren in Christ Church Association at Bums, Kansas, disbanded, as aforesaid, there were but two members of said organization surviving.”
The district court allowed compensation to the trustee for services performed and discharged him from all further responsibility and duty in connection with the trust. The court further decreed that under the residuary clause of the will the property described in paragraph eight reverted to and vested in Caroline E. Shannep, the former wife of the testator. From that construction of the will the defendant intervenor appeals.
Before discussing the appeal on its merits we are confronted with appellee’s motion to dismiss the appeal for the reason appellant failed to include a specification of errors in his abstract as required by rule 5 of this court. The rule is an important one and should be observed. Wholly inexcusable failure to comply with it has at times caused inconvenience, confusion and disadvantage. It has at times left opposing counsel and this court unadvised as to the specific grounds on which a reversal is sought. That, however, is in nowise true here. This- case was tried on an agreed statement of facts and the only question presented is one of law, namely, whether 'the trial court erred in the construction of the will. Appellant’s abstract and brief were filed under one cover. The single issue involved was clearly disclosed therein. Appellee’s brief deals solely and alone with answers involving that issue. Counsel for appellee conceded on oral argument before this court they were in nowise misled or inconvenienced in the preparation of their brief or in making their oral argument. The inadvertent omission from the abstract was promptly supplied when called to appellant’s attention. The motion to dismiss the appeal is denied.
Do the will and the stipulated facts require a reversal of the judgment? It is elementary that the primary, the supreme, test in the construction of a will is the intention of the testator. It also is elementary that such intention must be ascertained not from any single or isolated provision but from all provisions contained within the four corners of the instrument and from circumstances surrounding its execution if they are needed to clarify the testator’s true purpose and intent. In other words, courts are required to effectuate not their own desires or notions of what the testator wisely should have done but to give full force and effect to the testator’s actual intent in the disposition of his own property. If that intent reasonably can be ascertained it will be declared and executed unless it be contrary to law or public policy. With these principles in mind we'may proceed with the construction of the will. We shall refer to the beneficiary under the trust as the local church, to the intervening parent church organization as appellant and to the former wife of the testator, named in the residuary clause, as appellee.
The local church disbanded. It ceased to exist. The income or proceeds from the corpus of the trust estate, a half section of land in Butler county, therefore could be used by it no longer. In other words the express trust lapsed. The question now is what disposition shall be made of the trust? What light does the will, itself and the stipulated facts throw upon that inquiry?
The will nowhere mentions the appellant. There- is nothing in the stipulated facts to indicate the testator was a member of the local church or of any church. There is nothing in the facts to indicate he was to the slightest extent conversant with the discipline or ecclesiastical law of the parent church under which the business affairs of the local church were governed and administered. In fact there is no indication he even knew there was a parent church organization such as appellant. Under such circumstances are we justified in concluding the testator actually intended appellant should receive the fruits of his bounty and use them for any purpose it believed best in connection with its program for the advancement of religion generally? If we are required to so conclude then none of the proceeds of the trust are required to be used for religious purposes in the little town of Burns by any religious organization and the entire fund may be employed elsewhere in this country or in foreign lands and on one or any number of projects entirely unknown to the testator but which appellant deems to be worthy. While some persons might strongly favor such use of the funds and believe they would be expended advisedly and for a highly deserving cause, others might entertain a wholly different view. Such a contrariety of views often obtains even among ardent church members.
But what about this testator’s intent and purpose in that regard? It is clear he intended to create a charitable trust. But that fact does not conclude the vital and primary question here presented. That question is whether the testator intended to create a trust for religion generally and for all that may be done under the name of religion or whether he intended to create a trust for the benefit of a particular church in a particular community.
As the beneficiary of this trust he designated only “The United Brethren in Christ Church Association at Burns, Marion County, Kansas.” The parties have a good deal to say concerning the significance or lack of significance of the words “at Burns” contained in the designation of the beneficiary. The full quotation above is the corporate name of the local church as disclosed in its charter. The testator made no provision that the trust property or the income therefrom should accrue to any other religious body or organization located at Burns or elsewhere in the event the trust should lapse or fail for any reason. He did not name appellant or any other church or religious body in the residuary clause of his will. It also will be observed he did not make a devise of the land or a bequest of the income therefrom directly to the local church. He carefully avoided doing that. He expressly created a trust under which the legal title to the land was vested in a trustee, E. M. Strong of Burns, Kansas. He gave that trustee, and not the local church or its trustees, the supervision and control of the land. He further expressly provided that the trustee and his successors should report to and be under the supervision of the district court of Marion county, Kansas. That county was and had been the testator’s residence for a period of over fifty years. The testator created an identical trust in his will for-the benefit of the “Methodist Episcopal Church of Burns, Kansas.” The testator had been a highly successful farmer and had accumulated much land, the great bulk of which he devised outright or for life to his wife, appellee. These are all proper considerations in the process of determining whether the testator had a general or a particular charitable intent. (2 Bogert Trusts and Trustees, § 436, pp. 1307-1312.)
Where a settlor discloses an intent to create a particular charity, that is, a charity for the benefit of a particular organization or institution rather than an intent to create a general charity the doctrine of cy pres is not properly applied. (10 Am. Jur., Charities, § 127; 3 Page on Wills, Lifetime ed., § 1236, p. 599; 2 Bogert Trusts and Trustees, § 436; 4 Pomeroy’s Equity Jurisprudence, § 1027, p. 43; 3 Scott on Trusts, § 399.3, p. 2111.) This doctrine is well supported by numerous examined cases. It is not deemed necessary to set them out here as they will be found in the text discussions by the eminent authorities above mentioned.
This court in the rather recent case of In re Estate of Weeks, 154 Kan. 103, 114 P. 2d 857, had occasion to comment on the doctrine of cy pres and stated:
“As used in this state the doctrine seems to be no more than the application of rules long used by courts of equity in interpreting written instruments to ascertain the intention of the grantor or testator, and in carrying out such intention.” (p. 107.)
Manifestly where the intention of the testator appears there is no occasion for the application of any rule in aid of construction. We think the testator’s intention in the instant will is reasonably clearly indicated. We think his dominant purpose and intent was to aid the two particular local churches in his old home town rather than to create a general charity for religious purposes. It was quite natural, and certainly appropriate, for an old farmer who had struggled and lived successfully in a small community for over half a century to contribute to the welfare of his home community and old friends by aiding these two local character-building institutions which, if like most churches, are always in need of funds. In the absence of evidence disclosing any other intent we think we would be doing violence to this testator’s real purpose by construing his will as intending to create a general charity for the advancement of religion.
We frankly concede there is an apparent lack of harmony in the decisions on the question of what constitutes an intent to create a general charity or a particular charity. The tests for determining that question are not very clearly defined: The result is the question has been determined upon the basis of each particular instrument or on the basis of the instrument itself and surrounding circumstances. As previously indicated, however, we have no serious difficulty with that question here in view of the will itself and the stipulated facts.
It follows that, in the absence of a residuary clause, the property in question would stand, and should be disposed of, as intestate property. (Morse v. Henlon, 97 Kan. 399, 402, 155 Pac. 800; 2 Bogert Trusts and Trustees, § 418, pp. 1276-1277, § 468, pp. 1443-1445.) But herd we have a residuary clause and title to the lapsed trust property passes thereunder to the residuary devisee in the same manner as if the trust were void. (Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 333, 211 Pac. 146; Gibbs v. Turner, 140 Kan. 53, 34 P. 2d 564.) We'need not cite the numerous decisions from other jurisdictions which are in harmony noth these views.
In the early case of Morse v. Henlon, supra, it was said: ,
“The primary consideration in the interpretation of a will is the intention of the testator, and if it can be ascertained, that intention must govern' if it is not contrary to a settled rule of positive law or in violation of public policy.” (p. 401.)
This rule has been followed consistently in subsequent decisions of this court as indicated in Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177. We know of no reason for saying the construction we llave given this instrument is contrary to any settled rule of positive law or in violation of public policy. On the contrary we think it is in conformity with both.
Appellant contends that under the provisions of G. S. 1943 Supp. 17-1716d it is entitled to the income from the property in question. That statute pertains to appellant’s right to “abandoned property” of the local church. The local church never had title to or the possession of the land, the corpus of the trust, and hence it cannot well be said to have abandoned the land. It is at least doubtful whether the statute was intended to apply to the instant case. Appellant cites no authorities from other states with similar statutes to support its contention and our limited time for research has disclosed none. In any event the will in the instant case was executed in 1926, probated in 1927, and the statute relied upon was not passed until 1939. It frequently is said that a person is presumed to know the law and that contracts are made in contemplation of existing law which becomes a part of the contract. But, assuming for the moment the statute is applicable, can we say the testator’s intent in making a will must be determined by the provisions of a law not enacted until thirteen years after the execution of his will? But that is only part of the inquiry. Can we say that statute rendered or was intended to render nugatory the residuary clause of the will? We do not think so.
Appellant concedes the case of United Brethren, etc., v. Mount Carmel Community Cemetery Ass’n, 152 Kan. 243, 103 P. 2d 877, was not governed by the provisions of G. S. 1943 Supp. 17-1716d, but it cites that case as containing an indication that the statute, had it been applicable, might not have been held invalid as retroactive legislation with respect to property abandoned by a local church previous to the enactment of the statute. That was not a will case ¿nd, of course, it in nowise purports to declare the statute should be considered in ascertaining testamentary intent where a will is executed before the statute was enacted. That case dealt with a conveyance of abandoned real estate by trustees of a local church after the church had ceased to function. The issue there was solely whether the trustees of the local church or the parent church, under the church law, had dominion and control over abandoned property of the local church. In other words the issue was purely one to determine powers of government under the ecclesiastical law of that denomination.- That issue, very properly, was decided in favor of the parent organization. It was the same identical organization as appellant in the instant case. We pause to observe that the important provisions of the church law on the subject of abandoned property set forth by appellant in the instant case may be found in the opinion of that case. The decision in that case does not purport to be, and it'is not, controlling in a will case on the question of a testator’s intent.
We have carefully examined every case in the able brief filed by counsel for appellant. A detailed analysis thereof would not add materially to the opinion. We are persuaded the decision of the trial court was correct.
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The opinion of the court was delivered by
Parker, J.:
These are consolidated actions for damages wherein the.plaintiffs expressly state in their petitions they base their right to recover from the defendants personally on one cause of action only, namely, in tort for violation of their rights in and to an alley and certain lots abutting thereon, resulting from the construction of a drainage ditch in, over, and upon such alley and make no claim against the state of Kansas. The defendants demurred to the petitions as amended. The demurrers were sustained and the plaintiffs appeal.
The plaintiffs are the owners of the lots in question. Defendants are individual members of the State Highway Commission of Kansas and its director alleged to have directed the construction of, employees of that agency charged with the preparation and completion of plans and specifications for, and contractors claimed to have performed according to such plans and specifications the work on, the drainage ditch heretofore mentioned and hereinafter more fully described.
Some diversity appears in the language to be found in the amended petitions but we regard discrepancies as of minor importance to disposition of the issues. For that reason, and, since the cases are consolidated, we shall review questions presented by the appeal giving material allegations appearing in the three amended petitions the same force and effect as if all averments in each were incorporated in one pleading. Hereafter, for purposes of convenience, we shall refer to that pleading as the petition.
Certain portions of the petition can be summarized as follows: On October 2, 1929, the Bonaventure Town Site Corporation prepared and filed a plat known as Travel Air City, Sedgwick county, Kansas, in accordance with the requirements of G. S. 1935, 19-2633, the plat providing “the streets, avenues and alley are hereby dedicated to and for the use of the public.” The town, which is unincorporated, is located about two and one-half miles east of the city of Wichita. It has modern houses, available school facilities, business buildings and a population of approximately one hundred.
Block 8, a part of the townsite, was plannéd as and is the only business block. It is divided midway by an alley, the only one in the site, eighteen feet in width which intersects Goebel street on the east and Hoyt street on the west. Subsequent to the platting of the addition Ava H. Tillotson purchased Lot 9, Jennie Atchison Lot 18 and Violet Marie McCullough Lots 19 and 20. These lots face Central avenue on the south and extend from that street northward to a point where they abut on the alley, the south line of which -is the north line of plaintiffs’ properties and which provides the only means of access from the rear to buildings located thereon.
Sometime in the spring of 1943 the State Highway Commission condemned a tract of land twenty-five feet in width off the portion of lots situated north of the alley and directly across the alley from those of plaintiffs, but not including any portion of such alley, for a diversion ditch. Thereafter, the commission entered into a contract with the Stannard Construction Company, which defendant by and through its subcontractor, Frank Benbow, pursuant to plans and specifications prepared by the commission, constructed an open drainage ditch twenty-five feet in width at the top, approximately eight feet in depth and ten feet in width at the bottom, between Goebel and Hoyt streets. In its construction seven feet of the land so condemned and all of the alley was excavated and used for drainage purposes with the result that when completed such ditch entirely obliterated the alley, completely obstructed traffic thereon, did away with the possibility of its use for traffic purposes by the public or by plaintiffs and entirely destroyed its value and use as a means of ingress and egress to and from plaintiffs’ properties or for any other use except that for which the ditch was constructed. The petition also states that as completed and now existing such ditch is dangerous to persons who might be within the vicinity in that no safeguards are provided for protection-against falling into it, that it carries running sewage continuously which is unsightly, unsanitary and dangerous to the health and well-being of plaintiffs and other persons living in the community, and that the general appearance and condition as described all combine to affect the value of plaintiffs’ property and the damage resulting to them from its construction.
The petition further alleges the alley was appropriated and used for drainage purposes without condemnation proceedings or any other legal right to enter thereon and use it for such purposes, that the action of the defendants was without authority in law or any notice to, or consent of the plaintiffs and in violation of their property rights flowing from their ownership of the lots in question and their rights to the use thereof, and that no compensation has been paid plaintiffs for the damages suffered by them as the result of such action.
Other allegations of the petition relate to facts, circumstances and conditions, relied on by plaintiffs to establish liability against the defendants as individuals instead of the State Highway Commission which actually sponsored the drainage project and authorized its construction and completion. It would serve no useful purpose to detail them at length. In substance their fair import is that the State Highway Commission had no legal right to appropriate the alley for drainage purposes and construct the diversion ditch resulting in the damage to plaintiffs’ property rights without condemna tion or other proper legal proceedings, and in doing so exceeded the power and jurisdiction conferred upon it by statute; that since its action was unauthorized, the defendant engineers and employees who participated in the preparation of plans and specifications and had anything to do with the project in question, the members of the commission and its director who authorized its commencement and completion and the contractors who actually performed the work were each and all engaged in a joint enterprise for the construction of the ditch, were acting beyond the scope of their power and without color of authority, and when it was completed became severally and jointly liable to the plaintiffs, irrespective of the character of the service performed or the date when rendered, for all damage resulting to their property rights from the construction of such ditch even though at all times in question they were subject to the control and acting'under the direction of the State Highway Commission.
To the petition, in substance and in the form heretofore related, every defendant in each case demurred on the grounds that several causes of action were improperly joined, and that the petition failed to state facts sufficient to constitute a cause of action. All defendants except Benbow and The Stannard Construction Company demurred on the ground the court had no jurisdiction of the person of the defendants' or the subject of the action. Defendant Benbow’s demurrer also included additional grounds that plaintiffs had no legal capacity to sue and that the petition was not drawn upon a single or definite theory. The demurrers in each case were sustained generally as to all defendants.
Plaintiffs concede the general rule with respect to personal liability of public officials in the performance of their official duties is that announced in Gresty v. Darby, 146 Kan. 63, 65, 68 P. 2d 649, wherein it was stated:
“It is the general rule of law that state or municipal officials, performing the duties imposed upon them by statutes creating their respective offices and prescribing their duties, and exercising in good faith the judgment and discretion necessary therefor, are not liable personally in damages for injuries to private individuals resulting as a consequence of their official acts. (Hicks v. Davis, 100 Kan. 4, 163 Pac. 799; Construction Co. v. Sedgwick County, 106 Kan. 410, 186 Pac. 492, 46 C.J. 1045 [1042]; 22 R.C.L. 487 [43 Am. Jur. 93, § 280]; Mechem, Public Offices and Officers, §§ 612, 613.) . . .”
Having made that concession they direct attention to Cunningham v. Blythe, 155 Kan. 689, 127 P. 2d 489, and other decisions there cited, holding that the general doctrine of immunity is limited to acts performed within jurisdiction. They point out that the petition under consideration is replete with allegations that the defendants acted outside their jurisdiction and without color of authority. The gist of their contention is that such allegations avoid application of the immunity rule and that notwithstanding its existence the petition states a cause of .action against those of the defendants who are officialsiand employees of the State Highway Commission as individuals. We are unable to reach that conclusion so easily. The mere fact the petition contains statements of the character referred to, which in themselves are merely conclusions, does not of itself permit a conclusion that it states a cause of action. The demurrer only admits facts well pleaded. It concedes neither naked nor erroneous conclusions (Richards v. Tiernan, 150 Kan. 116, 91 P. 2d 22, and Kretchmar v. City of Atchison, 133 Kan. 198, 204, 299 Pac. 621). Under such circumstances it becomes our duty to search the entire pleading to ascertain whether the conclusions alleged by plaintiffs with respect to lack of jurisdiction and authority are supported by factual allegations which actually show that participation in the construction of the drainage ditch by defendants as officials and employees in the manner charged therein was without the color of authority which would otherwise make them immune from liability.
Examination 'of the petition reveals that the ditch of which complaint is made was constructed pursuant to a project initiated by the State Highway Commission for the improvement and drainage of a state highway. It concedes the commission had general power and authority by exercise of the right of eminent domain to acquire title to. any lands for purposes of state highway construction or drainage, but charges that because it appropriated and used the alley for that purpose without condemnation proceedings required by G. S. 1943 Supp. 68-413, participation by all officials and employees in the preparation and completion of the project was without jurisdiction and beyond the scope of their official authority. It is not alleged that the defendants failed to exercise in good faith the judgment and discretion vested in them under the law or that any of their actions were motivated by malice, corruption or capriciousness.
In our opinion the question of whether a petition containing allegations of facts such as are to be found in the one under consideration states a cause of action is not one of first impression in this court. In the recent case of Evans v. Marsh, 158 Kan. 43, 145 P. 2d 140, the plaintiffs sought recovery in a tort action against individual officials — the directors — of a drainage district under a petition stating that such officers had exceeded their authority and were actually acting as individuals, because their acts were illegal and void as a drainage district, in that they had constructed a drainage ditch on the plaintiff's land under conditions where their action had theretofore been declared by this court to be illegal. The defendant directors demurred to the petition and the plaintiff appealed. In sustaining the action of the trial court we held that under the rule announced in Gresty v. Darby, supra, the defendants were immune from liability, and on page 47 of the opinion said:
“We-shall not make an extensive review of the law covering organization of the Stonehouse Drainage District, or of its powers (G. S. 1935, 24-401 et seq.). The petition alleges the district is a corporation. Under the statute it is a 'body politic and corporate’ with power to sue and be sued, and to take charge of and exercise control of watercourses, to construct ditches, drains and levees, to levy assessments and special taxes to defray cost of improvements to levy and collect a general tax to create a general fund, and other powers as set out in the statute (24-407). The affairs of such a district are managed by a board of three directors (24-409) elected by the taxpayers of the district (24-411). In addition there is full authorization for making improvements. That the three defendants last referred to were operating as directors of the drainage district under color of statute and law and dealing with a matter over which they had jurisdiction is clearly deducible from the allegations of the petition, and from those allegations it is likewise clear that plaintiff seeks to hold them individually responsible because through a mistake of the law applicable, they failed to procure approval of the chief engineer of the division of water resources which we held to be a condition precedent to the making of the proposed improvement. (See State, ex rel., v. Stonehouse Drainage Dist., 152 Kan. 188, 102 P. 2d 1017.) It is clear from the statute and from allegations of the petition the board of directors was acting within its jurisdiction, and not outside of it as was the board of county commissioners in Cunningham v. Blythe, supra. . . .”
Here the petition alleged the existence oí a State Highway Commission organized and governed by the laws of the state. Under that law the commission is a corporate entity (G. S. 1935, 74-2001) with power to act for the state in all matters pertaining to the construction and maintenance of state highways. The defendant commissioners are its managing and directing officers (G. S. 1935, 68-404). As such officials they are authorized to determine what work shall be done and direct its performance. In connection with the project in question they were operating under color of statute and law and dealing with a matter over which they had general jurisdiction. Because of failure to acquire title by condemnation before appropriating the alley for drainage purposes, the plaintiffs seek to hold them individually responsible for damages.
The factual situation in the case to which .we have just referred • and the one at bar are so similar as to preclude differentiation in the application of the legal principles involved. If anything, there is less room for holding individual officials personally liable in this case than there was in that one. Here the property appropriated by the state was an alley dedicated to the use of the public. There the property entered upon and used by the drainage district for the purpose of digging a drainage ditch was private property in which the public had no right or interest. There the construction of a drainage ditch was commenced without compliance with the requirement of a statute (G. S. 1935, 24-1071), compliance with which was a condition precedent to the legality of the improvement project. Here the alley was appropriated, and construction of the drainage ditch commenced and completed by an arm of the state, possessing broad and general powers in connection with all matters pertaining to the construction and maintenance of highways and limited only in the scope of its power by express provisions of statute having that force and effect. No statute makes the institution of condemnation proceedings a prerequisite to the legality of a highway project or other public improvement. That this is true, and that when the state acts directly or mediately through the agency of a municipal corporation even without the institution of condemnation proceedings at all its action nevertheless is within the color of authority vested in it by law, is indicated by many of our decisions. (See Prickett v. Belvue Drainage District, 159 Kan. 136, 152 P. 2d 870; Sullivan v. City of Goodland, 110 Kan. 359, 203 Pac. 732; Railway Co. v. City of Hiawatha, 95 Kan. 471, 148 Pac. 744; Brookings v. Riverside Drainage Dist., 135 Kan. 234, 9 P. 2d 656; Schrag v. Blaze Fork Drainage District, 119 Kan. 169, 237 Pac. 1047, and Buckwalter v. School District, 65 Kan. 603, 70 Pac. 605.)
Without laboring the matter further we hold that under the doctrine announced in Evans v. Marsh, supra, the petition failed to state a cause of action as' against the defendant members of the State Highway Commission. The same holds true of all other defendants connected in any capacity with that state agency whether they be called officials or employees. No necessity exists for a discussion of the niceties involved in the determination of their status in that regard and we have purposely refrained from it. If officials, they are clothed with the same immunity as the commissioners. If employees, it is elementary that responsibility for work performed by them in good faith in the institution, prosecution or completion of the project, pursuant to the order of the commission authorized to direct its performance, is no greater than that of their superiors, who, as we have indicated, were not liable as individuals under allegations of fact to be found in the petition. It is certain it cannot be successfully contended the acts and conduct upon which the liability of any of the defendants was sought to be predicated did not have to do with a matter belonging to a class over which they had general power and authority and at least color of jurisdiction. See Cunningham v. Blythe, 155 Kan. 689, 127 P. 2d 489, and decisions and legal authorities there referred to,-wherein we held:
“Where a public officer performs, without jurisdiction, a quasi-judicial act, he is not exempt from liability to persons injured thereby, at least unless the subject matter of such act belongs to a class over which he has jurisdiction and the act is performed under color of jurisdiction.” (Syl. ¶ 7.)
Up to this point we have limited our consideration to the petition as it pertains to officials and employees of the State Highway Commission. We now direct our attention to the question of whether that pleading states a cause of action against the two defendants remaining — the contractors who actually performed the work of constructing the diversion ditch in question. The work was undertaken under a contract awarded by the commission. The ditch was constructed in accordance with plans and specifications furnished by that body and the improvement as completed was accepted by it. All these facts are to be found in the petition either from express statements or reasonable inferences deducible therefrom. There is no allegation that the work of construction was negligently performed. Under such circumstances we have little difficulty in concluding the trial court’s ruling sustaining the demurrer on the ground the petition failed to state a cause of action against the defendant contractors was proper.
Whatever the rule may be elsewhere this court is committed to the proposition, well supported by other authorities (44 C. J. 451, § 2708; 43 C. J. 1111, § 1874; 27 Am. Jur. 534, § 55, and 69 A. L. R. anno. 489), that an independent contractor who is awarded a con tract by the State Highway Commission for the construction of a highway improvement authorized by statute and who performs that contract according to plans and specifications with proper care and skill is not liable in damages for incidental injuries involved in the performance of such contract after the work required by its terms has been completed and the improvement turned over to and accepted by the commission. (See Engler v. Aldridge, 147 Kan. 43, 75 P. 2d 290.) Also Evans v. Marsh, supra, where, even though the contractor was held liable in damages because the contract under which work was performed was illegal, the principle is recognized and approved.
Since the petition failed to state a cause of action against any defendant it becomes unnecessary to give attention to other grounds of the demurrers even though the trial court did not specify the particular ground on which its decision was based. So long as its ruling was correct its reasons therefor become of little importance (Turner v. Jarboe, 151 Kan. 587, 591, 100 P. 2d 675). Even if the reason given had been erroneous its decision would stand (Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188 and cases there cited).
Nor is there occasion for us to give consideration to the interesting questions plaintiffs raise with respect to the character and extent of their titles or the measure of recovery for injuries to their property rights, either of-which might properly have been a subject of inquiry had the defendants or either of them been liable in damages for injuries resulting to their respective properties because of the construction of the highway improvement in question.
Finally, it should be stated that our conclusion the demurrers to the petition were properly sustained is in no sense to be construed as a decision that the plaintiffs are without remedy. That question is not before us on this appeal and is one on which we here express no opinion.
The judgment is affirmed.
Smith, J., dissents. | [
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The opinion of the court was delivered by
Burch, J.:
This is a workman’s compensation case. The district court, on appeal, held in favor of the claimant on all issues. The respondent and its insurance carrier appeal and contend that the evidence was insufficient to establish that the accident arose out of and in the course of the employment or thát a claim was made within the time provided by the statute or the extent of .the claimant’s disability.
If the first contention be sound, there is no basis for a claim being-filed .and the extent of the disability need not be determined. Consequently, consideration first will be given to the primary question.
The claimant was injured while on the grounds of the Sunflower Ordnance Plant, which belongs to the United States Government, and is operated by the Hercules Powder Company. The entire area of the Sunflower Ordnance Plant is approximately five miles wide and seven miles long. Thus, it will be seen that in area it is more extensive than most of the cities in Kansas.
The respondent is a contractor who was engaged in performing work in scattered places on the large tract. Many other contractors also were engaged in performing work on the premises. Under the circumstances the respondent did not have control over conditions which existed throughout the entire area but its control necessarily was limited to the scattered places throughout the entire tract where its work was being performed. • The workmen employed by the respondent reported each day to what is referred to in the record as “time shacks.” The claimant was in the employ of the respondent on October 28, 1942, as a carpenter helper, working out of time shack No. 10 from four o’clock in the afternoon until midnight. At the close of work on October 28, 1942, he was given a transfer slip and was informed that he was to report to work the next morning at eight o’clock at time shack No. 28. Consequently, it will be observed that the location of his work was changed and also the hours during which he was supposed to work. The exact distance between time shack No. 10 and time shack No. 28 is not shown by the record but the record does' disclose that the two were more than a mile and a half apart.
Instead of reporting on October 29 to time shack No. 28, the claimant remained at his home a day. At the time claimant was living at Linwood, Kansas, and according to his wife, he went over to the Sunflower Ordnance Plant on October 30 to try to get on the same shift on which he had been. He wanted to avoid working on the day shift because there were no cars from his town at such hours and he wouldn’t be able to get back on the same hours. According to her testimony, the claimant had with him1 when he left home either the transfer slip or an order for a transfer slip. According to the evidence given by the claimant, he arrived at the plant between 2:30 and 3:00 o’clock in the afternoon and the first thing he did was to go to the personnel office. The claimant further testified as follows: “I don’t remember whether I saw my foreman that day or not. . . . I don’t know what I was to do on the day I was injured. I had been doing this carpenter helper work for some time. By transfer slip I mean transferred to a different job. All I remember is my foreman told me to go over for my transfer slip and going over I got hurt. I was going to keep on working . . . , but I was being transferred from the job I had been doing, to another job. I don’t know in what part of the grounds the personnel office was located. I don’t know the number of the gate where I entered the grounds. I don’t know where the administration building is or where the personnel office is with reference to the administration building. I don’t know whether the personnel office is in that building. I went to the administration building to get my transfer slip. I think I was going to a different job when I got hurt. ... I think a quarter of a mile, or somewhere along in there . . . from the administration building. I don’t know which direction it was. I was going to that other job when I got hurt, . . . As far as I remember, another car — was going around the bus and when I had to go around the bus he run into me. That’s all I remember. ... I don’t remember the name of my foreman.” On cross-examination he testified that his foreman told him to go to the personnel office to get a transfer slip. He further testified: “I don’t know who I saw at the personnel office. My foreman had my transfer slip. As far as I know, he gave it to me at the personnel office. ... As far as I can remember I got it at the personnel office. I had not checked in when I had the accident. I had not got my brass. All I did was go to the job, pick up the transfer slip and was on my way when I had the accident. ... On other days I worked, before this accident I went to my time shack and got my brass. I hadn’t done that on the day I got hurt. ... I didn’t see anybody except the person at the personnel office. ...”
There was no further evidence as to how, when or where the unfortunate man was hurt. It is not claimed that the automobile which struck him belonged to the respondent or was being driven in a negligent manner in furtherance of its business enterprise. The record discloses that the claimant sustained a severe head injury which totally incapacitated him for some time and possibly has incapacitated him partially more or less ever since.
Additional explanation is necessary as to what the claimant meant by not having received his “brass” and as to the general conditions under which employees of the respondent labored. Robert H. Foster, called as a witness in behalf of the respondent, testified that during the involved period he was the chief timekeeper for the respondent and had charge of the pay rolls. He testified further that anyone desiring to enter the premises would have to go through the openings guarded by employees of Hercules Powder Company. To gain admission a man would have to show a photograph pass. The various contractors were scattered all over the entire plant area and respective employees would be relegated to one particular area to complete the work to be done and then go to another area. Each area had its own timekeeper. If a man were an employee of one of the contractors he would first go through the main gate by showing his credentials and then walk or by some means get over to the area where such contractor was working. The next step was to report to the time shack for that area and such contractor. At the time shack the employee would show a badge that designated his number on the pay roll. Such badge, however, was not known as the brass. When an employee would go to-the timekeeper's office he would show the number badge and thus disclose his pay-roll number. The, timekeeper would give him a corresponding badge with a number on it. Such badges were originally made of brass and were called by that name but they were made of fiber at the time this accident occurred. Thus it will be 'seen that an employee’s number badge was turned in when he reported to work and he was issued a brass. It follows that if the brass still was in the timekeeper’s office it indicated that the man was not in attendance and not working and the employee would not receive pay for that time. If the brass was taken off and the employee checked in at the end of the shift, he was given credit for a day’s work. Necessary notations were made on time, reports kept by the timekeeper and the workman was paid according to the number of hours disclosed by adding the number of hours the workman had possession of his brass. The witness testified: “The claimant’s pay would not start at time shack 28 until he had reported to the timekeeper there. . . . The minute he checks in at the time office his time starts right then.” Insofar as the time record of the claimant was concerned, the witness testified that the company records disclosed that claimant was in attendance from four in the afternoon until twelve in the night of October 28, 1942. The record also disclosed that he was to be transferred to time office No. 28. The time sheet for the following day did not show the claimant as having reported and a search of the records failed to disclose that the claimant reported on October 30. According to the witness a workman could have presented a transfer slip to anyone in authority and such man would have told the workman where to go and his badge would have been waiting for him at the time shack designated on the transfer slip. If such a man were injured and became unable to work before he got to the time shack where the brass was located, the records would not show his appearance.
The district court, in its finding of fact No. 2, held as follows:
“On October 28th, 1942, the Claimant had been instructed by his foreman, that he had been changed to a different location on the plant area, and that he was to report for duty at- Time Shack No. 28, which was .several miles from Time Shack No. 10, and in accordance with', instructions from his foreman, Claimant did report for further employment on October 30th, 1942, and while proceeding from the personnel office of the' Respondents, and on his way to Time Shack No. 28, under instructions from his foreman, he was hit by a car driven on a roadway of the area, and before he reached the location of Time Shack No. 28. ...” '
The opinion in!the case of Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70, written by the now Chief Justice Harvey, reads as follows:
“. ■ ■ But a finding or judgment of a trial court should not, and cannot, stand unless it has some competent, substantial evidence to sustain it. This has -been the ruling of this court on many occasions, though varied phraseology has been used in stating the. ruling. . .; •. including workmen’s compensation cases. ... •
“Whether a finding or judgment of a trial court is sustained by sufficient evidence — that is, substantial, competent evidence — is a question of law, as distinct from a question of fact. When this question is presented to this court it will examine the evidence solely for’ the purpose of determining that question. [Citing Paul v. Skelly Oil Co., 134 Kan. 636, 7 P. 2d 73.] If sufficient, evidence is found in the record to support the judgment of the trial court the judgment will be affirmed, so far as it relates to that point [citing Harrigan v. Western Coal & Min. Co., 133 Kan. 573, 300 Pac. 1115], but if such evidence is not found the judgment will be reversed.” (p. 624.)
Later in the opinion appears this statement:
“What we mean to hold is that before a claim for compensation can be sustained there must be substantial, competent evidence to support it. Claims cannot be sustained which rest purely bn conjecture, or upon abstract theories not applicable to the facts.” (p. 629.)' •
See, also, Whitaker v. Panhandle Eastern P. L. Co., 142 Kan. 314, 46 P. 2d 862; Williams v. Cities Service Gas Co., 151 Kan. 497, 99 P. 2d 822; and Hall v. Armour & Co., 153 Kan. 656, 113 P. 2d 145.
In the case of McMillan v. Kansas Power & Light Co., 157 Kan. 385, 139 P. 2d 854, paragraph one of the syllabus reads as follows:
“In a claim for workmen’s compensation the claimant has the burden of establishing, among other things,, that the injury to the workman occurred as a result of an accident which arose out of and in the course of the workman’s employment.”
The opinion in the case of Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496, reads as follows:
“. . . The phrase ‘in the course of employment,’ simply means that the injuiy happened while the workman was at work in his employer’s service. The phrase relates to the time, place and circumstances under which the ac cident occurred. [Citing Cox v. Refining Co., 108 Kan. 320, 322, 195 Pac. 863; Rush v. Empire Oil & Refining Co., 140 Kan. 198, 200, 34 P. 2d 542; Floro v. Ticehurst, 147 Kan. 426, 430-431, 76 P. 2d 773.] ... The phrase ‘out of employment,’ points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. [Citing Cox v. Refining Co., Rush v. Empire Oil & Refining Co., and Floro v. Ticehurst, all supra.]” (p. 677.)
Both elements must be present to justify recovery. (See: Covert v. John Morrell & Co., 138 Kan. 592, 27 P. 2d 553; and Repstine v. Hudson Oil Co., 155 Kan. 486, 126 P. 2d 225.) The pertinent statute reads as follows:
“. . . (k) The words ‘arising out of and in the course of employment’ as used in this act shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.” (G. S. 1935, 44-508.)
There is no showing in the record as to what company or companies may have been in charge of the administration building referred to in claimant’s testimony and there is nothing in the record which definitely discloses what company or companies were in charge of the personnel office referred to in his testimony. Any assumption which might be indulged in as to the administration building would be based upon pure conjecture. However, the rule permitting us to construe liberally the workmen’s compensation act in order to promote its purposes, might be relied upon to create an inference that the personnel office referred to was being operated by the respondent. Certainly, there would have been no occasion for the claimant to have gone to the personnel office of any other company but candor commands admission that we cannot determine actually whether there was#established at the Sunflower Ordnance Plant a general personnel office operated by all of the various companies engaged in the work at such plant. If such was the case, then it can be said, however, that the respondent company probably had a part in its operation. In order to give the claimant the benefit of another reasonable inference, we will assume that the claimant talked with a foreman employed by the respondent at the personnel office and that such foreman directed him to report, for work, at time shack No. 28. We note, however, that the claimant testified that he couldn’t remember whether he saw his foreman that day or not and that he didn’t know whom he saw at the personnel office. However, he also testified that his foreman had his transfer slip and that as far as the claimant- knew the foreman gave it to him at the personnel office.
According to the claimant’s wife, when he left his home at Linwood on the day of the accident, he had a transfer slip of some kind directing him to report to time shack No. 28. The appellants contend that consequently there was no occasion for the claimant to have gone to any personnel office; that he had been directed by his foreman when he quit work on the night of October 28 to report to time shack No. 28 the next day and that if the claimant went to the personnel office, he did so voluntarily for the purpose of getting his time shift changed back to his original shift, which began at four o’clock in the afternoon, rather than eight o’clock in the morning. Such contention is given strong support by the testimony of the ' claimant’s wife and it should be noted that claimant had been directed on the night of October 28 to report for duty at time shack No. 28 at eight o’clock in the morning — not between 2:30 and 3:00' o’clock in the afternoon.
It is difficult for us to avoid the conclusion that the claimant was not reporting for work on the 30th, but was in fact seeking to have the hours of his employment changed. However, there appears in the record the following unexplained and contradictory testimony: “Well, I was supposed to be there before three. My foreman told me to be there before three.” There is strong indication in the record that at- the time the claimant was testifying, he was mentally incompetent. The hearing before the examiner for the compensation commission was continued because the examiner thought that the claimant was deranged. At a later hearing claimant’s counsel stated that they would not put the claimant back on the stand and that they were satisfied to let the claimant’s testimony stand. They nowr insist in a supplemental brief that when the claimant appeared at the second hearing represented by counsel it was proper to permit the hearing to proceed; that the claimant’s rights can be properly determined in the present action and that claimant’s possible incompetency was a fluctuating or temporary condition. In support thereof they cite Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846.
Such being the contention, we will assume that the claimant had regained his mental competency at the time of the second hearing and that he did not testify further solely because of advice of counsel.
Probably two plausible conclusions can be deduced from the claimant’s conduct: Either he went to the personnel office for the purpose of having his shift changed, or he went to such office for the purpose of obtaining a transfer slip and being directed to the. place where he was supposed to go to work. At one time in his testimony he stated that his foreman told him to go over after his transfer slip and that going over he got hurt; at another point in his testimony he stated that die got a transfer slip at the personnel office and was on his way to time shack No,:28 when he got hurt.
Regardless of the inconsistencies, one fact appears clearly established. The claimant had not reached the area of .time shack No. 28 when the accident occurred. He testified: “I think I was going to a different job when I got hurt.” .and further: “I was going to that other job when I got hurt. ... I had not checked in when I had the accident. I had not got my brass. All I did was go to the job, pickup the transfer slip and was on my way when I had the accident. I didn’t know where the job was I was going..... On other days I worked, before this accident, I went to my time shack and got my brass. I hadn’t done that on the day I got hurt.”
The situation is somewhat analogous to. a case in which a company might have, established an employment- or personnel office near, the center of a city. A workman might report to such a personnel office and be directed to go to an airplane company plant No. 2 and report for work or be directed to go to a certain coal mine No. 3 and so report. If, while on. his way to so report for duty, he were injured in a traffic accident and such accident was incident to the general traffic hazards of the city and not to his particular employment, there ordinarily would not be any liability under the workmen’s compensation law, on the part of the employer.
The circumstances in the present case are almost identical with those set forth in the opinion of this court in the case of Harrison v. Lozier-Broderick & Gordon, 158 Kan. 129, 145 P. 2d 147, except that in the cited case there was no evidence of the claimant having stopped at the personnel office or at the administration building or having contacted a foreman. If the claimant in this case stopped at 'the personnel office for the purpose of enabling him to get credentials which entitled him to go to work at time shack No. 28, the hazard incident to his employment would not be any different from the hazard of the claimant in Harrison v. Lozier-Broderick & Gordon, supra. In such case the claimant started walking down the road to time shack No. 11 and on his way he was struck by a bus operated by the Hercules Powder Company, and injured. According to claimant’s own testimony in the present case he had started walking down the road and was on his way to time shack No. 28. Obviously, the fact that he had stopped at the personnel office would not change the situation. Under the facts in the cited case, it was held by the examiner for the workmen’s compensation commission and by the trial court, as follows:
. . the claimant had not yet reached the place of his employment— hence the injury did not happen in the course of the employment, as it must do before the workman is entitled to compensation for his injury.” (p. 131.)
This court approved the finding. From the opinion the following is quoted:
. . The place of his employment was in the vicinity of time shack No. 11. He was on his way there. There was no relationship between the man at the gate and claimant’s employer. They were employees either for the Sunflower Ordnance Works or the Hercules Powder Company. Claimant’s employer was not operating the bus which struck him nor was the bus being operated for it. The respondent bore no different relationship to the road on which the bus was operating and along which claimant was walking than any of the other subcontractors who were doing work at this plant.” (p. 131.)
The quoted statement applies with equal force to the present- case. Counsel for the claimant vigorously insist that the present case should be distinguished from the cited case because the claimant had contacted his foreman and had been directed to report to time shack No. 28. We'fail to comprehend wherein either fact changed the character or increased the hazard of his employment or enlarged the area of employment to which the claimant was on his way. No showing was made that the personnel office, the administration building or the place of the accident was in such area.
This opinion would be unduly prolonged by a discussion of the authorities cited by appellee. They were considered in the case of Harrison v. Lozier-Broderick & Gordon, supra, and have been reexamined carefully. As was said in the last cited case: “they are all cases where either the injury happened on the premises of the employer or while the workman was acting on business of the employer.” (p. 131.) Neither situation is presented by the facts disclosed in the present case and we are unable to find in the record competent, substantial evidence upon which it can be held that the accident arose out of and in the course of the employment as such terms are limited-by our statute and defined by our decisions.
The judgment of the trial court is reversed with directions to enter judgment for the appellants. | [
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The opinion of the court was delivered by
Smith, J.:
This is a prosecution for violation of G. S. 1935, 21-1617. A violation of this statute is commonly described as “impersonating an officer.”
The motion of the defendant to quash the information was sustained and the defendant was discharged. The state has appealed.
The pertinent part of the information was as follows:
“That Dave E. Bishop, on or about the 1st day of December, 1944, in the County of Sedgwick and State of Kansas, then and there being, did then and there unlawfully, wilfully without the authority, exercise or attempt to exercise the functions of or hold himself out to other persons as a peace officer; to-wit: an officer of the Kansas Highway Patrol; all of said acts by the said Dave E. Bishop being contrary to 21-1617 of the General Statutes of Kansas, and against the peace and dignity of the State of Kansas.”
The statute of which defendant ivas charged with the violation is in the following words:
“That any person or persons who shall in this state, without the authority, exercise or attempt to exercise the functions of or hold himself or themselves out to any as a deputy sheriff, marshal, policeman, constable or peace officer, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for a period of not less than three months nor more than one year.”
It will be noted the information charges that the defendant impersonated a peace officer, to wit, an officer of the Kansas Highway Patrol.
Defendant argues that the information did not charge a public offense because the statute makes it a crime to impersonate a deputy sheriff, marshal, policeman, constable or peace officer. All parties agree that a highway patrolman is not a deputy sheriff nor a marshal nor a policeman nor a constable. He argues that a member of the highway patrol is not a peace officer as the term is used in the foregoing statute.
The state argues, however, that an officer of the highway patrol is a peace officer and that when the information charged in the words of the statute that the defendant exercised or attempted to exercise the functions of and held himself out to other persons as a peace officer, to wit, an officer of the Kansas Highway Patrol, it stated a public offense under G. S. 1935, 21-1617. This argument sends us to our authorities for a definition of the words “highway patrol.”
In 1933 the legislature enacted various statutes having to do with the collection of taxes on motor vehicles of various types and including pleasure automobiles. Up to that time the public service commission and the state motor vehicle commissioner had been in charge of this general function of the state. One of the chapters enacted by the legislature for 1933 was chapter 283 thereof. The title to this act is as follows:
“An Act relating to the duties of the state highway commission, and providing for certain inspections and examinations to be made by the state highway commission, and providing for reports of inspections to certain departments of government.”
The first section of that act conferred on the highway commission the duty of executing the laws as to inspections of motor carriers and provided further that for this purpose the commissioner was authorized to appoint such employees and inspectors as might be necessary in the performance of those duties. The chapter then went on to provide that there should not be more than ten of these inspectors and fixed their maximum salary. It also provided for certain reports to be made.
The legislature of 1933 met in special session. Amongst other acts it passed was chapter 109. This chapter amended chapter 283 of the Laws of 1933 by providing that the number of inspectors provided in section 1 of that act should be twenty rather than ten and added the following proviso:
"That the inspectors so appointed are hereby vested with the authority and power of peace and police officers, and as such shall have state-wide jurisdiction.”
Still the words “highway patrol” had not been used.
When the General Statutes of 1935 were compiled chapter 283 of the Laws of 1933, as amended by chapter 109 of the Special Session of 1933, was carried as G. S. 1935, 74-2007. The heading of that section is as follows:
“Highway patrol; motor-vehicle inspections; employees and inspectors; SALARY.”
As far as we can find that is the first time the words “highway patrol” appear in our statute books. The inspectors appointed pursuant to chapter 283 and chapter 109 .were called highway patrol men and the group was referred to as the highway patrol but up to that time there was no legal sanction for the term. The officers were inspectors for the state highway commission but they ,did exercise the authority and power of peace and police officers and did have state-wide jurisdiction. , . :
Chapter 283 of the Laws of 1933. and 109 of the Laws of the Special Session of 1933 were carried into the General Statutes of 1935 as G. S. 1935, 74-2007, 74-2008 and 74-2009. ■ ■ . .
Chapter 330 of the Laws of 1937 has the following title:
“State highway patrol.”
The title of ’the bill was as follows:
“An Act creating and providing for a state highway patrol, providing for the appointment of the superintendent and members thereof, defining their powers and duties, providing for the payment of the cost thereof, and repealing sections 74-2007 and 74-2009, General Statutes of Kansas of 1935.”
This bill created a state highway patrol by that name, providing for a superintendent and forty-five patrolmen. Sections 2 and 3 of the act are interesting from our standpoint. They provide as follows:
“It is hereby made the duty of the state highway patrpl to execute and enforce the law with reference to inspections now and hereafter required to be made by law by the state corporation commission as to motor vehicles and transportation by motor vehicles, and inspections now or hereafter required to be made by law by the vehicle commissioner as to license tags, the law with reference to drivers’ licenses, and the law with reference to safety to life and property upon the state highways of the state, and such other duties as may be placed upon them by law or by the superintendent.
“Said patrolmen are hereby vested with the power and authority of peace and police officers, in the execution of the duties imposed upon them by this act: Provided, however, The members of the patrol shall have full power and authority as now or hereafter vested by law in peace officers when working with and at the special request of the sheriff of any county or the chief of police of any city, or under the direction of the superintendent or in the arrest of anyone violating any law in their presence or in the apprehension and arrest of any fugitive from justice on any felony violation.”
These two sections appear in G. S. 1937 Supp. as 74-20a02 and 74-20a03. It will be noted that in the passage of that act the patrolmen were first given the authority of peace and police officers and the execution of the duties imposed upon them by the act. The duties imposed upon them by the act were outlined in section 2, that is, to execute and enforce the law with reference to inspections required to be made by law by the state corporation commission as to motor vehicles and transportation by motor vehicles and certain inspections all having to do with motor vehicles and license tags and safety upon the public highways. The proviso of section 3 of chapter 330 will be noted provided that the members should have the authority and power vested in peace officers when working with and at the request of the sheriff of any county or the chief of police of any city or under the direction of the superintendent or in the arrest of anyone violating any law in their presence or in the apprehension or arrest of any fugitive from justice. '
By the proviso these patrolmen have the power of police officers only under certain circumstances, that is, (1) in enforcing the law with reference to inspections and automobile traffic generally; (2) working with and at the special request of the sheriff of any county or chief of police of any city; (3) under the direction of the superintendent of the patrol; (4) the arrest of anyone violating any law in their presence; (5) in the apprehension and arrest of any fugitive from justice on any felony violation. The legislature clearly intended to limit the powers and authority of these patrolmen as peace officers to their acts while performing some one of those functions and to no other.
Criminal statutes generally should be strictly construed. See State v. Waite, 156 Kan. 143, 131 P. 2d 708, and other well-known authorities.
Had the state in the trial of this case proved that the defendant did on some occasion — not one of those described in the statute, to which we have referred — say “I am a member of the highway patrol” it would have been the trial court’s duty to hold that the state had not proved any crime. The information should charge definitely the acts the state intended to prove the defendant did, which constituted the impersonation so they might appear to come within the terms of the statute. No such descriptive terms appear in this information. The court was correct in sustaining the motion to quash.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action in which the plaintiff sought •to quiet his title to certain real estate, and in which the defendant sought ejectment, as more fully set out later. The trial court rendered judgment that the parties were tenants in common and that plaintiff have a lien for improvements made and taxes paid. Motions of each party for a new trial were denied, and the defendant has appealed and the plaintiff has cross-appealed.
The record presents no dispute of facts except as to the value of improvements made. In 1942 a tax foreclosure action was instituted by the Board of County Commissioners of Lyon county against the owners of many tracts of real estate, the defendants therein not including the parties to the present action. Among the tracts of real estate described were the following:
No. 354. “Commencing on the south line of the Northwest Quarter (NW14) of the Northeast Quarter (NE14) of Section Sixteen (16), Township Nineteen (19), Range Eleven (11), 10.63 chains east of' the southwest comer of the Northwest Quarter of the Northeast Quarter, north forty rods, east twenty rods, south forty rods; west twenty rods to the place of beginning; except sixty feet off the north end and except the railroad right-of-was' on the south side.
No. 355. “A one and one-half acre tract in the Northeast Quarter (NE%) of Section Sixteen (16), Township Nineteen (19), Range Eleven (11), described as fpllows:
“Commencing at a point' one hundred and twenty feet south of point 10.03 chains east and forty rods north of the southwest comer of the Northwest Quarter (NW1¡4) of the Northeast Quarter (NE14), thence east twenty rods, thence south 305 feet; thence West twenty rods, thence north 305 feet, except- south 200 feet.”
Comparison of the two descriptions will show that except as to the west six-tenths of a chain or the west 39.6 feet, all of tract 355 lies within and is a part of tract 354.
Following a judgment in the foreclosure action a sheriff’s sale was had on August 24, 1942, and tract 354 was sold to J. O. Pooler, defendant in the instant action for $8, and thereafter tract 355 was sold to Clarence Blair, the present plaintiff for $195. Both sales were confirmed on September 30,1942, and deeds were executed by the sheriff under date of October 1, 1942, conveying the respective tracts to the respective purchasers. • Pooler’s deed was filed for record in the office of the register of deeds on November 14,1942, and Blair’s deed was so filed on March 15, 1943. Pooler testified that he heard that Blair had purchased the land under another description and he went to the tract, closed the doors and put up a sign “Keep Out.” Blair testified that on the same day he received his deed (date not specified) he went to the property and nailed the doors and windows shut. Blair moved into the property in December, 1943, and has since been in possession. He made' extensive repairs and improvements and -paid the subsequent taxes on the land described in the deed to him. On March 10,1944, Pooler gave Blair a written notice in which he set out in substance the description as in No. 355 above; that he had purchased the property and that Blair was unlawfully occupying the property and requesting that he vacate it. Pooler also stated in the notice that any improvements made or to be made by Blair were at his own risk.
■ On March 22, 1944, Blair commenced an action against Pooler to quiet his title to the real estate as described in No. 355 above, alleging that he went into possession October 1,1942, and had since so remained. Pooler answered on April 18,1944, with a general denial, . and an allegation that plaintiff’s cause of action was barred by the six-months statute of-limitations provided in the ,tax foreclosure act of 1941. He also filed a cross-petition in ejectment. Plaintiff filed a reply and answer which among other things alleged the making of permanent improvements. A trial was had and .the trial court concluded that Blair and Pooler were tenants in common, and each should have a lien for the amount of.the purchase price paid at the foreclosure salé, and also for permanent improvements made. Thereafter further evidence was received .as to the value of improvements, rental value and taxes paid, and in a memorandum opinion, incorporated by reference in the journal entry of judgment, the court found the cost of permanent improvements made by Blair was $850, the rental value from December, 1943, to October 1,1944, was $100, and the value of a shed removed by Pooler was $5; that Blair and Pooler were tenants in common and that .Blair should have a lien for $1,015.60, being the cost of the permanent improvements ($850) plus one-half taxes for 1942 and 1943 (total $52.20 — half $26.10) plus difference between purchase* price paid by B.lair and Pooler ($195 — $8, or $187) plus one-half .value of. shed sold by Pooler ($5, half $2.50) less one-half rental value ($100, half $50), and on October 20, 1944, it rendered, judgment accordingly. As has been indicated, the separate motions of Blair and Pooler -were denied and each has appealed.
In consideration of this appeal we note that neither party places any stress whatever on the fact that the west line of tract 355 is approximately 40 feet west of the west line of tract 354, and we shall consider the case as though tract 355 was wholly included within the boundaries of tract 354. It may be said there is no evidence that any part of the improvements were on this west portion of the tract involved in the present suit.
No good purpose will be served by taking up and discussing the several contentions advanced and argued by Pooler and Blair as to the trial court’s ruling they ar-e tenants in common. We can find no sound basis for such a conclusion. In a preliminary way it may be said we are not concerned with who may have owned or claimed to own either tract 354 or tract 355 prior to the tax foreclosure action. No person, party or otherwise, ever .commenced any proceedings, legal or equitable, to set aside the judgment in the tax foreclosure action, or to attack the deeds issued, and generally speaking, at least, all such proceedings were barred in six months after the date of the sale. (See G. S. 1941 Supp. 79-2804b.) In the case at bar it is stip- • ulated that the larger tract 354 was first sold by the sheriff to Pooler. Without objection that sale was later confirmed, a deed was issued to him and recorded, and under the statute then in effect vested in him a fee simple title to the tract included in the judgment, notice of sale and deed. (G. S. 1941 Supp. 79-2804.) When the sheriff sold tract 354 to Pooler he sold the land included in tract 355 later sold to Blair. When the latter tract was offered, the county had nothing left to sell, and Blair legally acquired nothing. However, the sale continued and Blair purchased the smaller tract 355, the sale was confirmed, he received a deed, and concededly he went into and remained in possession and made lasting and valuable improvements.
It is provided by G. S. 1935, 60-1901, that in. all cases any occupying claimant being in possession and holding any land under any sale for taxes authorized by the laws of this state, shall not be thrown out of possession or evicted by any person who shall set up and prove an adverse and better title until the occupying claimant shall be'paid the full value of all lasting and valuable improvements made by him previous to receiving actual notice by the commencement of suit on such adverse claim by ■ which eviction may be effected.
Neither party requested the selection of a jury to determine the value of the improvements made as provided by G. S. 1935, 60-1903, and the matter was left to the trial court for 'determination. It heard evidence as to the nature of the improvements .m.ade and determined the cost thereof. Pooler objects that the correct measure is not the cost of improvements, but the enhanced value of the real estate by reason of the improvements. We agree, that the cost of the improvements did not determine what was the full value of “all lasting and valuable improvements made” (G. S. 1935, 60-1901). It was in part competent evidence to show what changes were made between the time possession was taken and an adverse claim asserted by one found to have a better title, There was evidence, which although criticized was not controverted-, that' the property when taken by Blair was worth $500 and after improvements were made and completed in December, 1943, it was worth $1,500. The difference of $1,000 can be attributed only to the lasting and valuable improvements made.
In addition Blair paid taxes subsequent to .the sale in the total amount of $52.20. Had he not paid those taxes, Pooler would have had to pay them or the property would have been encumbered with them. Under the circumstances existing Blair cannot be said to be a mere volunteer. He should be repaid those taxes before being evicted. (For provision in such case before tax foreclosure act was passed see G.-S. 1935, 79-2506.)
On the other hand, the statute contemplates that the person in possession should be charged with the net annual value of the rents from the time of receiving notice of the adverse title “by service of a summons” (G. S. 1935, 60-1904) or “by commencement of suit” (G. S. 1935, 60-1901). The language of the above statutes cannot be strictly applied, for here the action was instituted by Blair and defended by Pooler. Pooler’s claim was first asserted in court when he filed his cross-petition on April 18, 1944, and this we consider as the “commencement of suit.” At the trial it was stipulated that a certain real estate man should look at the property and ascertain its monthly rental value. The trial court in its memorandum opinion states the evidence discloses that the rental value was $15 per month. From April 18, 1944, to July 18, 1945, which will be shortly after this opinion is filed, is fifteen months. Blair is accordingly charged with rentals in the amount of $225.
The net result is that Blair is credited with value of lasting and permanent improvements in the sum of $1,000, and with taxes paid in the sum of $52.20, or a total of $1,052.20, and is charged with value of rents in the sum of $225, leaving a balance of $827.20.
The judgment of the trial court is reversed and set aside and the cause remanded with instructions to render judgment that appellant Pooler is the owner of the real estate as described in tract 355, and entitled to the possession thereof whenever he shall pay to the appellee, Blair, within such reasonable time as the court may allow, the sum of $827.20, with- interest at six percent after July 18, 1945, if payment be later made, or if said Pooler elect not to pay said amount, to render such further judgment as is just and proper under G. S. 1935, chapter 60, article 19. | [
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Doster, C. J.
This was' an action by the New Hampshire Banking Company as a judgment creditor of the Davidson Investment Company, a corporation, to charge the Hinsdale Savings Bank with liability as a stockholder in the corporation named. The action was in the form of .a petition under the last clause of section 50, chapter 66, General Statutes 1897. The defendant filed an answer denying its membership as' a stockholder. The only evidence in proof of membership was the stub of a stock certificate book containing memoranda indicating that a certificate of shares of stock had been issued to the defendant. This memoranda was in the following words — •
“ Date of certificate, October 1, 1896. Number of certificate, 57. Number of shares, 60. To whom issued, Hinsdale Savings Bank.”
Upon this evidence judgment was rendered against the defendant. The question of its sufficiency to support the judgment is brought here for review. It is wholly insufficient. It is evidence res inter alios acta — nothing more. Entries in the books of a private corporation are made by its officers and concern nobody but the corporation and its members. If membership in a corporation be admitted, the books kept by its officers, with some exceptions, are admissible in evidence against the member, but they are not admissible to establish even prima facie the fact of membership, as against one protesting his lack of connection with the company. As to him such books are hearsay of the baldest kind. A stock subscription book in which one has entered his name as a subscriber for corporate shares would constitute a contract receivable in evidence upon the issue of membership in the corporation, but a mere entry of his name as a subscriber, made upon the books by the secretary, or other officer, can be viewed in no other light than as the declaration of the. corporation or the officer. Elementary as the rule of evidence adverted to is, the supreme court of the United States, in Turnbull v. Payson (95 U. S. 418), and likewise a few of the state courts, have lent the sanction of their judgment to an opposing one. The doctrine of these cases is, however, caustically characterized by Judge Thompson in his Commentaries on the Law of Corporations (vol. 2, § 1924),. as " a strange aberration.” The epithet seems not without propriety so far as necessary to give emphasis to the expression of opposing view. What would appear upon reason to be the indisputable rule of evidence is thus stated by the author named :
"Perhaps no rule broad enough to cover all cases can be stated as to when, in an action to charge a shareholder, the books of the corporation are evidence against him. It maybe stated that as between members of the corporation, they are evidence of all corporate acts therein recorded but they cannot be used against a stranger to connect him with the corporation, unless made so by act of the legislature. It is obvious that this must be the rule applied to the classes of actions we are considering. Otherwise the secretary of a company, by entering a man’s name as a shareholder on its books, might, without his knowledge or consent, make him a stockholder; and where death or other circumstances had rendered countervailing proof impossible, this unauthorized act might charge him or his estate with a serious burden. Men should be allowed to make their own contracts ; the courts should not, by establishing unreasonable rules, make contracts for them.” Id., § 1919.
The case of Plumb v. The Bank of Enterprise (48 Kan. 484, 29 Pac. 699), is unlike this one. There the question was whether the stubs of stock certificates, which according to a practice of the corporation known to its members, were used to record or note the transfers of stock when made, but which in the particular case showed no transfer, could be used as evidence of the negative fact, as against one who admitted his membership in the company at one time, but claimed that he had parted with his shares, and who had failed to have the transfer noted by the company according to its custom on the stubs of the certificates. There the books of the corporation kept in a particular -way to the knowledge of an admitted member, were used to show his continuing liability ; here the books of the corporation were used as the sole evidence of an original contract or membership. It is not unlikely that upon an issue of membership in a corporation, the books kept by its officers may be introduced to establish the claimed connection with the company ; but if so they would be received not as independent but as qualifying or explanatory evidence. They could not be received as the sole dispositive evidence of the fact in dispute.
The judgment of the court below is reversed for proceedings in accordance with this opinion. | [
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Doster, C. J.
The defendants in error sued in the court below to enjoin the collection of special assessments made for the grading of a street. The ground upon which the injunction was asked was, that the petition to the city council for the making of the improvement was not signed by the requisite number of qualified petitioners. At the close of their testimony the defendant demurred to'it for insufficiency of proof of a cause of action. This demurrer was overruled. The defendant then introduced its testimony, at the close of which judgment as prayed for was rendered in plaintiff’s favor. The defendant prosecuted error to this court. The judgment was reversed. City of Argentine v. Simmons, 54 Kan. 699, 39 Pac. 181. The closing sentences of the opinion in the case are as follows :
“ We think that the testimony offered by the plaintiffs below was insufficient to maintain their action, and that the demurrer thereto should have been sustained, and judgment rendered in favor of the city. For this purpose the judgment will be reversed and the cause remanded.”
After the reversal of the judgment, the plaintiffs moved the court below for a new trial upon the grounds of “accident and surprise,” and “newly discovered evidence.” This motion for new trial was sustained, and from the order sustaining it the defendant prosecutes error to this court. The “accident' and surprise” alleged as one of the grounds for new trial consisted in a mistake of law as to the requisites of the petition to the city council. Paragraph 832, General Statutes of 1889, (Gen. Stat. 1897, ch. 37, §§ 135-41) provides that the petition to the city council for a street improvement shall be signed by “three-fourths of the property owners fronting on the street.” This quotation from the Statute is a misprint. It should read, “three-fourths of the resident property owners,” etc. It is section 1, of chapter 104 of the Session Laws of 1887 which reads, as there published, “ resident property owners.” The law of 1887 is an amendment to section 6, chapter 99, Laws of 1885, in some particulars, but not in the one under consideration. That section reads “resident property owners,” as in the later act of 1887. The newly discovered evidence assigned as the second ground for the new trial consisted in the discovery of the fact that the petition to the city council was not signed by three-fourths of the “resident property owners.” To summarize the grounds for the new trial they were, “accident and surprise,” that the law as correctly printed required the property owning petitioners to ■be residents, and the discovery of the fact that a sufficient number of the petitioners in question were not residents.
Under the circumstances, we are not justified in criticizing the plaintiffs or their counsel for failure to know the law. The mistake made by them was a natural one. It is not to be expected that parties will take the extraordinary precaution of verifying the accuracy of the print of an authorized compilation of the Statutes. We think, however, that the evidence offered in support of the motion for new trial shows that the “ accident and surprise ” of which they com.plained could have been guarded against in the former hearing in such a way as to enable them to have made their proof under the Statute as correctly printed, and that guarding against such accident and surprise would have given opportunity for the discovery of the new evidence. The counsel for plaintiff in his affidavit supporting the motion for new trial, among other things said “ that during the progress of the trial in this court, and after plaintiffs had introduced practically all of their testimony, affiant discovered that there was a discrepancy in the reading of said section 832, as contained in the volume of the Statutes in use in the court house, and his own ; but he did not ascertain until later on, when he had an opportunity to examine the Session Laws, which of said volumes con.tained the law on the subject, and having been mis led, as before stated, he had not investigated the subject as to whether three-fourths of the resident property owners fronting on the street to be improved had signed the petition, and having no opportunity to investigate said fact during the trial, he could not make an application for a continuance of the case.”
According to this admission counsel became aware during the trial of the case of the discrepancy in the print of the two Statutes ; a discrepancy which vitally affected the parties to the cause. He should at once have called the attention of the court to it, and should have asked for a postponement of the hearing until the correct reading of the law upon which he founded his case could have been ascertained. Without doubt the court would have granted a sufficient delay, not only in justice to the parties, but to save itself from falling into error, Instead of asking for the necessary delay counsel preferred to continue the trial upon a legal theory, the correctness of which he might well have begun to doubt. After gaining the necessary time to enable him to ascertain the law and bring his evidence within its terms, he would have been able to proceed, or if then unable to proceed could have dismissed his case without prejudice to a future action. The case of Boot and Shoe Co. v. Martin (45 Kan. 766, 26 Pac. 424), is quite in point. It was there said :
“If a plaintiff finds himself unprepared to meet a defendant’s evidence, he should ask at the trial for time to meet it. Generally this will be allowed upon such terms as may seem just, but if this is not allowed, he always has it in his power to dismiss his action without prejudice, which will leave him at liberty to sue again for the same cause of action. He cannot, as a general rule, be permitted to take the chances upon the evidence to which he does not object, and, when judgment is rendered against him, obtain a new trial simply because he was surprised at the evidence presented.”
The plaintiff in error claims that, independently of the above considerations, the new trial should not have been granted. Among other things it is urged that the judgment and mandate of reversal put an end to the controversy ; that the plaintiffs below having failed to prove their case, and this court having ruled that the defendant’s demurrer to the evidence should have been sustained and having ordered judgment for defendant on such demurrer, the controversy was at an end, within the rule declared in Duffitt v. Crozier, 30 Kan. 150, 1 Pac. 69. Whether the rule in that case or the one announced in K. C. F. S. & M. Rld. Co. v. Berry, (55 Kan. 186, 40 Pac. 288,) is to be applied to the facts of this case we do not deem it necessary to determine, nor do we deem it necessary to determine the correctness of any of the other claims for reversal made by plaintiff in error. For the reasons above given, our judgment is, that the motion for new trial should have been overruled; and for the error of the court in granting such trial, its order is, therefore, reversed for proceedings in accordance with this opinion. | [
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Allen, J.
The Attorney General, on behalf of the State, instituted this action in the District Court of Wichita County to recover the amount of three interest payments, claimed to be due on each of thirty-five bonds of Wichita County for a thousand dollars each. Only the amount of the interest coupons sued on is directly involved in the case, but, as the right of the plaintiff to recover depends on the validity of the bonds, the indirect effect of the decision materially affects the permanent school fund in which the bonds are held.
The bonds were issued on the first of January, 1892. The recitals in them show that they were issued for the purpose of refunding the bonded indebtedness of the County, under chapter 163 of the Laws of 1891, which was an act amendatory of chapter- 50 of the Laws of 1879 ; that the indebtedness refunded existed at the time of the passage of the act of Í891; that the proper evidence of such indebtedness had been de livered up for cancellation; that the bonds so delivered up had been outstanding for more than two years prior to making the order for refunding them, and that all acts, conditions and things required by said act of the Legislature to be done precedent to the issuing of the bonds had been properly done and performed. The bonds were registered by the Auditor of State on the day following their date, and he indorsed on the back of each of them, a certificate that it had been regularly and legally issued. The first seven interest coupons were paid by the county. The bonds were bought for the school fund by the state school fund commissioners on November 9,1894. Default was made in the payment of the interest evidenced by coupons numbers 8, 9 and 10, which are the ones now in suit. <
The defendant filed a long answer, verified on belief by the county attorney, denying generally the allegations of the petition, except as expressly admitted, and alleging that it became one of the organized counties of the State on the twenty-fourth of December, 1886 ; that on May 26, 1887, the Chicago, Kansas, & Western Railroad Company presented a petition to the Board of County Commissioners to submit to the voters of the county a proposition to aid in the construction of its railway through the county; that the Board, on the first of July, 1887, illegally declared the proposition carried, by throwing out the vote of two townships, and illegally ordered the clerk of the county to make a subscription for $80,000 of the capital stock of the company in exchange for $80,000 of county bonds; that the clerk illegally made such subscription ; that the only consideration for certain of the bonds described in the petition was such pretended subscription ; that the sole consideration for certain other bonds, also described by number, was, like proceedings with reference to a subscription to the capital stock of the Denver, Memphis & Atlantic Eailroad Company, under which a subscription of $55,000 to the stock of the last named company was made in exchange for $55,000 of the bonds of the county; that the refunding bonds were issued directly in settlement of the subscription, and not for the purpose of taking up prior bonds ; that, on the sixth of December, 1887, Gallagher and Cowgill brought two suits in the District Court of Wichita County against the county commissioners, clerk, and the respective railroad companies, to enjoin the issuance of county bonds under such subscriptions, and that, on the-day of June, 1889, final judgment was rendered in said action granting perpetual injunctions as prayed for. Other matters are setup in the answer, which it is not necessary to state here.
To this answer the plaintiff filed a reply containing, first, a general denial; second, a statement that the defendant had ratified the bonds and coupons in controversy, by the voluntary payment of interest; and alleging that the plaintiff was a bona fide purchaser of the bonds before maturity, without' notice of the in-, junction proceedings mentioned in the answer.
On these pleadings the case was tried to the court without a jury. Judgment was rendered for the defendant. The plaintiff brings the case here for review.
The questions involved are discussed, by both parties, much as if the case were on trial here both as to the law and the facts. Of course this court is concluded on all controverted questions of fact by the findings of the trial court, and can only review the questions of law properly raised there and regularly presented here. Doubtless this course was adopted because of a desire to have the merits of the contro versy passed on by this court, but it results in difficulty and embarrassment rather than a more full and satisfactory disposition of the questions of law involved. It is always best to follow the rules, and present clearly and pointedly the questions of error in the proceedings of the lower court relied on for a reversal of its judgment.
The most important question of fact at issue was whether the bonds now held in the State school fund were issued in exchange for railroad bonds, actually outstanding at the time they were issued, or were issued in compromise of the claims of the railroad companies for such bonds under subscriptions to the capital stock of the companies. On this most important question the evidence is unsatisfactory. On the side of the plaintiff are the recitals of the bonds, and a journal entry of the proceedings of the Board of County Commissioners showing their doings at the time the refunding bonds were issued, wherein it is recited that these bonds were issued in exchange for railroad bonds, surrendered by the railroad companies, which were destroyed in the presence of the Board by the clerk. The entries in the journal of the Commissioners were admitted in evidence, but proof was allowed to be introduced with reference to the handwriting in which the entries were made, and tending to show that they were not in the handwriting of the county clerk. Counsel, in the briefs, speak of these entries as copies, not as originals. Documents from the office of tho Auditor of State, purporting to be ■.signed by the members of the Board of County Commissioners, and also by the county clerk, identical in language with the entries on the journals of the county commissioners, which counsel for the State argue were the original orders, were offered in evidence, but excluded by the trial court. This ruling is pointed out as erroneous.
It is not apparent that these documents would have added anything to the plaintiff’s case. The entry on the journal of the board of county commissioners is the original of every order made by them. It matters not whether it is entered up by the clerk himself from oral directions given by the board, or whether it is copied from a draft of an entry approved by the board. The record in their journal of the proceedings of a board of commissioners, like the journal entries of the proceedings of a court, are the originals and the highest and best evidence of their acts. The original drafts, no matter how formally approved or signed up, are merety directions to the clerk for his guidance in making up the permanent record. In connection with these documents there was also offered in evidence two certificates of the chairman of the board of county commissioners and county clerk, which appear to have been made for the purpose of authorizing the registration of the bonds by the Auditor of State, in compliance with the provisions of § 13 of ch. 46 of the General Statutes of 1897. These were offered together with the other documents to which they appear to have been attached. They were also excluded. In rejecting these certificates the court erred. They were stautory certificates required as a basis for the action of the Auditor.
On behalf .of the defendant, the records of the county clerk’s office of Wichita County, showing the bonds issued by the County, were introduced in evidence. It appeared that entries of certain bonds issued to x-efund county warrants had been duly made, as also of the refuxiding bonds now in controversy; but there were no entries of railroad bonds issued in payment of subscriptions to the capital stock of the railroad companies before mentioned. The defendant also introduced, over the objection and exception of the plaintiff, the record of the proceedings in the case of Gallagher and Cowgill v. Johnson and others, being the action to enjoin the commissioners and county-clerk from issuing bonds to the Denver, Memphis and Atlantic Railway Company in payment of the subscription to the capital stock of that company, from which it appears that, on the twenty-sixth day of June, 1889, the action was dismissed by the plaintiff as to the railway company, and judgment entered, on overruling the demurrer of the defendants to the plaintiff’s petition, granting a perpetual -injunction against issuing the bonds. A like judgment was also shown in another action, enjoining the issuance of bonds to the Chicago, Kansas & Western Railroad Company. Error is alleged in the admission of these judgments. It appears from the recitals . , „ . n . m the entry or ludgment m this case, that the court gave much weight to these judgments; the court finding:
“The court finds from the evidence that the bonds describe’d in plaintiff’s amended petition and the coupons cut therefrom and that constitute the various causes of action in said petition were issued in violation of the order and decree of this court in the cases of Thomas Gallagher and Perry J. Cowgill v. The Board of County Commissioners of Wichita County, Kansas, et al., and the court finds that the orders of injunction issued by this court in those cases have never been vacated, but are and have -been since the-day of June, a. d. 1889, in full force, and that the public records in Wichita County, Kansas, was notice to the world that'the clerk and chairman of the board of county commissioners of Wichita County, Kansas, or the commissioners of said County and State have not power to issue those bonds and coupons sued upon.”
This action was brought by the State, which was a stranger to the judgments admitted in evidence and which the court appears to have given controlling effect in the decision of this case. The injunction was not against the issuance of these bonds, but the original railroad bonds. The bonds from which the coupons sued on were clipped are negotiable in form, payable to bearer. It is not controverted that the School Fund Commissioners bought them before due, for value, and without actual notice of the injunction proceedings. The judgments in those cases constitute no bar to the plaintiff’s recovery, nor is it apparent that they were admissible for any purpose. In Carroll County v. Smith, 111 U. S. 556, it was held : “The issuing of a temporary injunction, which was afterward made permanent, by a state court, restraining municipal officers from issuing municipal bonds, does not estop a bona fide holder for value, who was not a party to the suit, from maintaining title to such bonds issued after the temporary injunction.” A judgment is admissible against strangers to it wherever it is material to show the fact that the judgment was rendered, and its effect on the rights of the parties to it, but not for the purpose of showing the existence of the state of facts on which it was based, or the legal consequences resulting from such facts. As to these, it is res inter alios acta and without force. 1 Wharton on Evidence, § 823 ; Freeman on Judgments (4th ed.), § 416.
The doctrine of Us pendens, under which all the world is required to take notice of certain classes of proceedings in courts of record affecting the title to property which is the subject 0f lJj¿gaftonj has n0 application to Suits
relating to negotiable instruments before maturity. Winston v. Westfeldt, 22 Ala. 760, 58 Am. Dec. 278; Freeman on Judgments (4th ed.), § 194; Comity of Warren v. Marcy, 97 U. S. 96. Under’these authorities, even if the injunction had been against issuing the very bonds in suit, it would have had no effect on the rights of the plaintiff. Much less can an injunction against the prior bonds be controlling in the decision of this case. It is not apparent that the fact that the injunctions were granted is material in this case. It does not prove, either that the bonds were not outstanding at the time the injunction was granted, or that the defendants did not violate it. Proof of the rendition of a judgment is not equivalent to proof of its execution. It may or may not be carried into effect. The error in the admission of these judgments is of prime importance because the court appears to have given them controlling weight in the determination of the case.
Various other considerations are urged by each party as of controlling force in its favor in this controversy, but the state of the record gives us no basis for directing a judgment in the case. It would seem to be an easy matter to show, by clear and satisfactory proof, the very important fact whether or not there were railroad bonds actually outstanding for which the refunding bonds were exchanged, without leaving the matter to be determined from the recitals in the bonds and inferences to be drawn from the public record.
While not presented as a ground of error, inasmuch as the case is to be sent back for a new trial, we remark that the court was in error in holding that the burden of proof rested on the plaintiff. There was no denial under oath of the execution of the bonds and coupons in suit. There is nothing on the face of them to impeach their validity. The burden was on the defendant to show it.
Por error in the admission and rejection of evidence, as above pointed out, the judgment must be reversed and the case remandedffor a new trial. | [
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Allen, J.
This is a very strange case. We do not deem it necessary to enter minutely into the many questions urged on our consideration. It is apparent that by a most remarkable procedure the plaintiff has been denied any trial on the merits of his action. It is at least very doubtful whether any valid reason existed for bringing in the People’s Bank as a party. While Boyd had transferred his property to the bank by deeds and bills of sale, absolute in form, he had taken back a written contract to re-convey on the payment of his debt to the bank, so that the whole contract was in writing and a copy of the defeasance executed by the bank was attached to the plaintiff’s petition. It thus appeared in writing that the transfer óf the property amounted to a mortgage, and there does not appear to be greater reason for bringing in the bank as assignor than there is in any other case of an assignment of paper secured by mortgage.
But assuming that the bank might properly be made a party, and that the court acquired jurisdiction by the service on Choat, the judgment entered in favor of Boyd on his cross-petition against the bank did not conclude Choat’s rights and was no defense whatever to his action. It was not claimed by Choat, .nor alleged by Boyd, that he stood in the attitude of a purchaser of negotiable paper for value before maturity. He bought the notes after they were due and took them subject to all defenses that Boyd could have made against the bank. These defenses were available to Boyd without making the bank a party, to precisely the same extent as with it. There was no trial of Boyd’s rights when the judgment was entered against the bank. The record shows that it was entered by default and for the lump sum of damages claimed by the plaintiff. No testimony was offered, although Boyd’s claim was for unliquidated damages for the conversion of his property by the bank. So that even as to the bank the judgment was at least irregularly and erroneously entered. When it was entered no issue between the plaintiff and Boyd was tried, determined, or affected.
At the trial of the main case Choat proved the execution and transfer of the notes to himself, and it was conceded that the deeds and bills of sale stood as security for the debt. He therefore had established fully his cause of action. Against this the defendant interposed nothing but the bare judgment taken by default against Dunn and the .Bank. This judgment, rendered as it was, neither proved nor tended to prove any defense against the plaintiff’s claim. The default of the bank, if it really was in default, amounted to nothing but an admission at that time of the averments of defendants’ answer. Nothing could be clearer than that the bank, years after the transfer of the paper to the plaintiff, and long after the institution of his suit to recover judgment on it, could not by any admission, declaration, or default, prejudice in any manner Choat’s right of recovery. On the testimony introduced Choat was entitled to the judgment he claimed, yet the trial court decreed the cancellation and return of all the papers that he held and charged him with the costs of the action. This judgment cannot stand. ' It is reversed and the case remanded for a new trial. | [
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Johnston, J.
This was an action by Winston Rierson to recover from the St. Louis & San Francisco Railway Company a strip of land which had been used as a righ t of way for its railroad since the early part of the year 1880. The land over which the right of way was located was a part of that ceded to the United States by the Great and Little Osage Indians through the treaty concluded September 29, 1865, and proclaimed by the President January 21, 1867. With a view of purchasing the land from the United States, Rierson settled upon it in September, 1880, some time after the right of way was granted and the Railroad was in 'operation over the land in question. On June 6, 1888, Rierson received from the United States a patent for the land settled upon, no exception being made of the easement for right of way, and he has been continuously in the possession of the land since that time, except of the part used as the right of way.
The St. Louis, Wichita & Western Railway Company was duly incorporated in 1879. In August and September of that year, it surveyed its road and located its right of way over the lands in controversy ; and, in March, 1880, completed the construction of its railroad across the same. Prior to March 16, 1880, the Railway Company proceeded to obtain a right of way over the land, in accordance with the requirements of “An act granting to railroads the right of way through the public lands of the United States,” approved March 3, 1875, by filing a copy of its articles of incorporation and due proofs of its organization thereunder, all of which were duly approved. Subsequently, and before June 1, 1888, the Company filed a map and profile of its road, and on the day last mentioned they were approved by the Secretary of the Interior. The Railway Company continued to operate its railroad until the transfer of the same together with all its property and franchises to its'successor, the St. Louis & San Francisco Railway Company, which since that time has continuously operated the railroad.
The trial court found that the Railway Company acquired its right of way by the proceedings taken in 1880, and that Rierson took his title from the United States subject to the easement which the Company had previously acquired.
In our view a correct conclusion was reached. According to the finding of the trial court, the rights of the Railway Company were acquired before settlement was made on the land by the plaintiff or any rights therein were obtained by him. He insists that this, with other findings, is not supported by the testimony, but, as the case-made does not show that it contains all the evidence, we must accept the facts as stated in the findings.
There is a contention that the lands ceded are not public lands, within the meaning of the act under which the Railway Company claims to have acquired its rights, and that therefore no right of way w’as ever obtained by it. As will be observed, the lands were ceded to the United States to be surveyed and sold under the direction of the Commissioner of the (General Land Oíhce at a price not A less than one dollar and twenty-five cents per acre, as other lands are surveyed and sold, under such rules and regulations as the Secretary of the Interior should from time to time prescribe. .The proceeds of the sale, less the expenses incurred, were to be placed in the treasury of the United States to the 'credit of the Indians and were to be thereafter expended for purposes mentioned in the treaty. There was a provision that within six months after the ratification of the treaty the Indians should remove from the ceded lands and settle upon their diminished reservation. The Indians having surrendered the right of occupancy, and ceded their lands to the United States with power of sale and disposal, there can be no doubt that the General Government had power to grant a right of way over the lands. By the Act of March 3, 1875, it was enacted : “That the right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any State or Territory,” etc. Supp. to Rev. Stat., 1891, Vol. 1, p. 91. Can the ceded lands be regarded as Public Lands within the meaning of this Act ?
It has been held that “the words ‘Public lands’ are habitually used in our .legislation to describe such as are subject to sale or other disposal under general laws.” Newhall v. Sanger, 92 U. S. 763; Bardon v. Rld., 145 U. S. 535. By the terms of the treaty, the ceded lands were to be sold by the United States as other public lands were sold ; and, as they must be sold under general laws and regulations, they fall fairly within the definition of Public Lands given by the Supreme Court of the United States. See, also, Roberts v. M. K. & T. Rly. Co., 43 Kan. 102. The Act. of March 3, 1875, provides that its provisions shall not apply to lands reserved for sale ; but here, in addition to the title held by the United States as original proprietor, specific authority was given to sell the lands as other public lands are sold. Provision was made in the treaty for right of way to railroad com-panies over the land not ceded and which remained to the Indians ; but no provision was made nor limitations placed upon the power of the United States as to granting a right of way over the lands which had been ceded. Being public lands, its follows that, upon compliance with the provisions of the Act of March 3, 1875, the Company would acquire a right of way. The court found that the Company had complied with the requirements of the Act, and if we could measure the' sufficiency of the evidence from what is preserved in the record we would be compelled to hold that there was enough to sustain the finding.
Complaint is ^made that a copy of the map filed with the Secretary of the Interior was received in evidence without sufficient identification. It appears to be an exemplication of the original, which was filed in the Department of the Interior by the Railway Company, certified by the Commissioner of the General Land Office to be a literal copy of the original, and upon its face it appears to cover the land in controversy. Exemplications .of this character are admitted in evidence with like effect as originals, when they are attested by the officers having custody of the originals. Gen. Stat. 1897, ch. 97, § 10. Attached to the original map and made a part of the same are the affidavits of the officers of the Company showing that the route surveyed was represented by the map, that it had been indorsed by the board of directors of the Company, and that it was filed for and in behalf of the Company in order to obtain the right of way under the above-mentioned act of Congress. The map shows, and the record recites, that it was filed and approved in the Department of the Interior on June 1, 1880.
Another objection to its reception is that there is no indorsement upon the same showing that it. was filed in the land office at Independence, Kansas, being the office for the district ° within which the land in question was situated. The important step in the proceeding was the approval of the Secretary of the Interior! His approval was a gwsi-judicial act, and when his decision is made and approval given, it may fairly be presumed that the formalities to be' observed and preceding steps to be taken, by the Railway Company have been observed and taken. Aside from-that, however, there is proof that the map was filed in the land office at Independence. An exemplification of a letter of the register of the land office at that place was introduced in evidence, showing that the maps of location-of the railroad were filed in that office on April 27, 1880. It was a letter which accompanied the maps, and was addressed to the Commissioner of the General Land Office, and was at least competent for the purpose of showing that the map had been filed in the land office at Independence. The letter of the register of the land office at Wichita, to which objection is made, appears to-have no bearing on the case ; and, being immaterial, no "prejudice resulted from its-admission.
We find no substantial error in the proceedings, and, therefore, the judgment of the District Court will be affirmed. | [
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Allen, J.
The receivers in charge of the M. K. & T. Railway Company entered into a contract with the Union Bridge Company for the construction of the superstructures of certain iron and steel bridges, among which was one across the Neosho River, near Osage Mission. The contract contained, among others, the following provisions :
“Third. The work herein specified and in the specifications and the plans and drawings to be prepared in accordance therewith, shall be executed under the direction of the superintendent of bridges and buildings of the parties of the second part, as aforesaid, or his assistants ; and the superintendent of bridges and buildings shall have the power to reject all work and material that shall not be in accordance with the strain sheets and specifications and with the spirit of this agreement.”
“ Seventh. It is hereby mutually agreed that if any labor is done or material furnished by either party to this contract to the other, that the same shall be paid for by the parties receiving the same, at the actual cost thereof to the parties doing or furnishing the same. Bills shall be rendered monthly for all such labor and material, and. settlements therefor shall be made independently of the payments on this contract and by separate vouchers.”
“ Twelfth. The parties of the second part shall furnish the lower false work in place and the material necessary and proper for the erection of the new spans, and shall remove and pile up the old bridges before the erection of the new ones, and shall remove the false work after the erection of the spans. They shall also furnish and put in place the ties and guard rails, and do all the necessary masonry pertaining to the bridge seats.”
Before the construction of this bridge, the Railway Company regained possession of the road from the receivers ; and work under the contract was continued in accordance with the terms of the contract made by them. Adam McWherter was employed by the Bridge Company. Two gangs of men were employed on the work at the same time. The gang of the Bridge Company was under Rockwell, as general foreman, and Porter, as gang foreman. The railroad gang was in charge of W. R. Gilbert, as foreman. As the new bridge was constructed, the old one, which was in use for the passage of trains, was removed in sections corresponding with the sections of the new structure. The Railroad Company had constructed the false work on which were placed what are termed pony bents, four to four and a half feet high, supporting the stringers on which the track rested. These stringers were made of large timbers eight by sixteen inches in dimensions, bolted together in pairs. McWherter was directed by his foreman to go with others and help remove the old bridge. They first removed the iron and ties. He then took his place on the false work, with fifteen or twenty other men, part of whom belonged to the bridge company gang and the others to the railroad gang. Mr. Gilbert, the Railroad Company’s foreman, who stood at one end of the part of the structure they were about to remove, directed them to roll one of the stringers off at the side and let it fall below. This was done. He then told them to roll the other the same way, and let it go below. The men obeyed his direction by putting their hands against the stringer and rolling it. As they did so, one end, where it had been sawed in two and which had rested on a prop, dropped from the prop and caused one of the bents also to fall, striking McWherter and knocking him off the false work to the water below. From the injuries so sustained he died the same day.
This action was brought by his daughter, Daisy McWherter, as administratrix of his estate. In her petition she alleges that her father’s death was caused by the negligence of the foreman ; that the stringer had been sawed off, as he well knew, of which fact the deceaséd was not informed, nor could he from the position he occupied see that it was sawed off and liable to fall; that when it was rolled over it fell, and it, and the bent on which it rested, fell on McWherter, knocking him from the floor on which he stood to the ground and water below, thereby causing his death. To the petition the defendant answered denying generally the matters stated in the petition, except those directly admitted. The execution of the vcontract with the Bridge Company by the receivers, and the return of the property to the Railroad Company, were admitted; and it was admitted that Mc-Wherter was an employee of the Bridge Company. It was then alleged that R. E. McWherter, the widow of the deceased, had presented to the Bridge Company a claim for the death of her husband through the negligence of the Bridge Company and its employees ; that said claim had been settled, and a written agreement entered into, discharging the Bridge Company from all liability therefor in consideration of the payment of two hundred and fifty dollars. A copy of the agreement was attached to the answer, and it contains a recital to the effect that she claimed that the death of her husband was caused by the negligence of the Bridge Company, and that they denied that it was so caused ; and that, for the purpose of compromising all differences between them, and in consideration of two hundred and fifty dollars, she released them, and all their servants and employees, from all claims on account of the death of said McWherter. It also contains this clause :
‘ This release shall not be construed to in any way affect or impair any right or claim which the party of the first part may have against the Missouri, Kansas & Texas Railroad Company, its agents, servants, or employees.”
It was claimed by the Railroad Company that this settlement, having been made by the widow before the appointment of an administratrix, operated as a settlement and discharge, not only of the Bridge Com-, pany but of the Railroad Company as well. As a further defense, the answer also alleged that R. E. McWherter brought an action against the Railway Company for the identical claim sued on by the plaintiff in this case ; that after a jury had been impaneled to try the case, and a witness had been called on to testify, the defendant objected to the introduction of any testimony, on the ground that the written release of the Bridge Company above mentioned operated as a complete discharge of the liability of the defendant; that the objection was sustained by the court and the action thereupon dismissed. A copy of the journal entiy in that case is attached to the answer in this, and shows that ‘ ‘ the court dismissed said action without prejudice at the cost of the plaintiff.” The answer also alleges that the plaintiff has no legal capacity to sue ; "that she has not been legally appointed adminis-. tratrix; that the probate court had no jurisdiction to appoint her ; that she had no legal capacity to receive an appointment of administratrix, being under the age of eighteen years at the time of her appointment, and a non-resident of the State of Kansas. Other matters of defense are also stated, which it is unnecessary to refer to. The plaintiff replied with an unverified general denial of the new matter contained in the answer. When the case was called for trial, the defendant objected to the introduction of any testimony, on the ground that the defendant was entitled to judgment on the pleadings. The court overruled the objection, and this ruling is assigned as error.
It is contended that the petition fails to state a cause of action ; that McWherter was not an employee of the Railroad Company; that under the contract between the receivers and the Bridge Company the work in which McWherter was engaged at the time of his injury was the work of the Bridge Company, and not that of the Railroad Company ; that whatever risk attended the work was patent, and was voluntarily assumed by McWherter ; that he knew that the stringer must have been sawed off, otherwise it would have been impossible to move it; that he was sent to this work by the foreman of the Bridge Company, and that no ground of liability on the part of the Railway Company was stated. There is no merit in this contention. Whether McWherter is to be regarded as a servant employed and paid by the Railway Company, or not, is unimportant. At the time of his injury he was lawfully performing labor under the direction of the Railroad Company’s foreman. It was not his duty to direct the manner in which the work should be done ; nor was he in any manner responsible for the safety to himself and others of the conditions under which they were working. It does not appear that he was in a position where he could see where the timber had been sawed, or that he had or ought to have had knowledge of the consequences that would follow rolling the stringer over. It was Gilbert’s place to know that the men could obey his directions with reasonable safety, before giving them the order to roll the stringer over. The company must respond for his negligence.
The next contention is that a settlement with one of two joint wrongdoers is a discharge of both ; that in this case the Bridge Company and the Railroad Company were engaged in the joint enterprise which resulted in McWherter’s death ; that a settlement having been made with the Bridge Company, the Railroad Company also is discharged. We shall assume, without expressing any opinion as to correctness of the’ assumption, that the plaintiff, as administratrix, would be barred by any settlement made by the widow that would bar an action brought by her. The soundness of the general rule that a settlement with one of two joint tortfeasors ordinarily discharges both, is recognized. Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881. In Leddy v. Barney (139 Mass. 394), it was held that a release by A given to C is a bar to an action against B for the same cause, whether C was liable or not; that the mere fact of making the claim against C, coupled with the satisfaction of it, was sufficient to release all who might be liable ; that this view is supported by Leither v. Philadelphia Traction Co., 125 Penn., 17 Atl. 338, and Tomkins v. Clay Street Rld. Co., 66 Cal. 163. On the other hand, in the case of Turner v. Hitchcock, 20 Ia. 310, it was held that “a release of a person as a joint trespasser who is not in fact liable to the releasor does not destroy the right of action of such releasor against thos.e who are liable.” To the same effect are the cases of Bloss v. Plymale, 3 W. Va. 393; Wilson v. Reed, 3 John. 175; Wardell v. McConnell, 25 Neb. 558; Snow v. Chandler, 10 N. H. 92; Bell v. Perry, 43 Ia. 368; Owen v. Brockschmidt, 54 Mo. 285; Pogel v. Meilke, 60 Wis. 248. In the case of the Kentucky & Indiana Bridge Co. v. Hall, 125 Ind. 220, it was held :
“The execution of a release by the plaintiff to the railroad corporation which employed him would not act as a release of the bridge corporation sued, if from the evidence the jury might conclude that the corporation to which the release was executed was in no way responsible for the accident.”
We concur in the view taken by the authorities last cited. The reason of the rule which renders the acceptance of satisfaction from one of two or more joint tort feasors a discharge as to all, is that the wrong is single and entire, and the injured party is entitled to one and only one satisfaction, no matter how many parties may have joined in the act. As a general rule, the nature of the case does not admit of an apportionment of the damages among the wrongdoers, but they are liable jointly and severally for the whole. When the wrongful act is not done jointly by the persons from whom compensation is sought, but is the deed of one or the other and not of both, we are unable to perceive on what principle a settlement with and discharge of one affects the cause of action against the other. Certainly it is not by way of estoppel, for the party not released is no party or privy to the arrangement, and has no joint interest with the one discharged. In this case there was ample evidence to show that the neglect was that of the Railroad Company alone ; and the release executed by Mrs. Mc-Wherter expressly stipulates that it shall not operate as a discharge of the Railroad Company. Conceding that the claim made against the Bridge Company was unjust and ill founded, we know of no legal principle on which the settlement can be made available to the Railroad Company.
The claim that the dismissal of the case brought by Mrs. McWherter against the company determines the controversy and constitutes a bar to this action is expressly negatived by the terms of the order itself, which shows, that “ the court dismissed said action without prejudice.”
Adam McWherter was killed on the seventh of December, 1891. Letters of admistration were issued to the plaintiff ón the seventh of November, 1893, and this suit was commenced on the twentieth of November> Allowing. At the time of her appointment, Daisy McWherter was not yet eighteen years of age, and was a resident of Bourbon County. She afterwards married, and, at the time of the trial, was living with her husband at Nevada, Missouri. Her appointment was never revoked. It is insisted that she was without authority to prosecute the suit as administratrix, for the reasons, first, that being a minor she could not lawfully be appointed; second, that the statute expressly provides that letters shall in no case be granted to a non-resident of the State and that when an administrator becomes a non-resident the probate court shall revoke his letters. It appears in this case that before her appointment the plaintiff had been granted the rights of majority, by proceedings in the district court; but it is contended that this merely authorized her to enter into contracts as if she were an adult, and did not confer any added rights with reference to an appointment as administratrix.
It is further insisted that the statute authorizing district courts to confer on minors rights of majority is unconstitutional because it attempts to give legislative powers to the courts. We deem it unnecessary to make extended comments on any of these claims, or to consider whether they would have availed in a direct attack in the probate court on the letters of ad ministration. The letters were in the plaintiff’s hands at the time the action was tried, and no proceedings had ever been instituted to cancel or revoke them. The plaintiff was then more than eighteen years of age. She was administratrix, in fact, and her authority to act was not open to collateral attack by the defendant. Davis v. Miller, Adm’r, 106 Ala. 154; Succession of Lyne, 12 La. An. 155; State ex rel. v. Rucker, 59 Mo. 17; The State v. Smith, 71 Mo. 45. Neither is there any force in the suggestion made that the intestate left no estate to be administered, or that the appointment of an administrator was not made in due time.
As before remarked, there was sufficient evidence to sustain the verdict. We find nothing substantial in the complaint made because the trial court declined to permit counsel for the defendant to argue the demurrer to the testimony. Nor do the criticisms on the instructions given to the jury merit discussion. The part copied into the brief fairly and correctly states the law.
The judgment is affirmed. | [
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Allen, J.
E. L. Chatten was indebted to the plaintiff, the State Bank of Chase, on certain promissory-notes which had been taken in compromise and settlement of prior obligations. Before the date of the notes, and while he was indebted to the Bank, he had purchased and paid for a tract of land which he caused to be conveyed to his wife, Fannie Chatten, who was made a co-defendant. This action was brought by the Bank to recover judgment on the notes, and to enjoin a transfer of the land until after a judgment could be obtained. Subsequently, by leave of the court, what is denominated a separate petition was filed against the same parties and in the same action, in which the only relief demanded was that the defendant be restrained from selling the property until after judgment could be obtained on the notes.
The contention of the plaintiff in error, plausibly and ingeniously urged by its counsel, is that under the statute concerning trusts and powers Mrs. Chatten holds the title to the real estate in question as trustee for the creditors of her husband. The sections relied on are as follows :
“Sec. 6. When a conveyance for a valuable consideration is made to one person, and the consideration therefor paid by another, no use or trust shall result in favor of the latter ; but the title shall vest in the former, subject to the provisions of the next two sections.
“ Sec. 7. Every such conveyance shall be presumed fraudulent as against the creditors of the person pay ing the consideration therefor ; and where a fraudulent intent is not disproved, a trust shall in all cases result in favor of prior creditors to the extent of their just demands, and also in favor of subsequent creditors if there be sufficient evidence of fraudulent intent.”
We remark, at the outset, that, if the contention of counsel for the plaintiff in error be sound, no necessity for delay in subjecting this property to the payment of the claim is apparent. If Mrs. Chatten is a trustee, holding the property for the benefit of the plaintiff and other simple contract creditors, she can be compelled to execute that trust, at once, by disposing of the land and paying the proceeds to those equitably entitled thereto.
In the early case of Wiggins v. Armstrong, 2 Johns. Ch. 144, Chancellor Kent declared the law as follows :
“The creditor must have completed his title at law, by judgment and execution, before he can question the disposition of the debtor’s property. The reason of the rule seems to be that, until the creditor has established his title, he has no right to interfere, and it would lead to unnecessary, and perhaps a fruitless and oppressive interruption of the exercise of the debtor’s rights. Unless he has a certain claim upon the property of the debtor, he has no concern with his frauds.”
And this has been recognized as the law from that time to the present day. Bump on Fraudulent Conveyances (4th ed.), §§ 526, 535; High on Injunctions (2d ed.), § 326; 10 Am. & Eng. Encyc. Law, 807; Uhl v. Dillon, 10 Md. 500, 69 Am. Dec. 172. If a debtor may not be restrained from disposing of his property before judgment and execution against him, a fortiori, a stranger cannot be. The sections of the statute above quoted make no change in the procedure to enforce the rights of a creditor. He has no standing to attack the title of the party to whom the land has been conveyed until after obtaining a judgment on his claim. Ocean Nat’l Bank v. Olcott, 46 N. Y. 12; Underwood v. Sutcliffe, 77 N. Y. 58. Section 248 of the Code of Civil Procedure, General Statutes 1897, does not affect the case, for the plaintiff has no right to vex Mrs. Chatten with litigation until its demand against her husband is established by judgment. In the case of Tennent v. Battey, 18 Kan. 324, it was held that an attachment lien was insufficient to give the creditor a standing to attack an assignment of the debtor’s property claimed to be fraudulent. In this case, no lien whatever had been obtained on the property. Whether the land might have been subjected to the payment of plaintiff’s claim under the garnishment act of 1889, we express no opinion ; but the ruling of the court denying the injunction asked is clearly right.
The judgment is affirmed. | [
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J ohnston, J.
Orin Ben j amin Attei’berry was charged with obtaining illicit connection, under promise of marriage, with Nancy Elizabeth Paramore, in violation of section 36 of the Crimes Act. The result of the trial was a conviction, and the punishment imposed was imprisonment m the penitentiary at hard labor for a term of four years.
The defendant admitted that he had had illicit intercourse with Nancy, but denied that it was obtained under the promise of marriage. It was sufficiently shown that she was under twenty-one years of age at the time of the alleged intercourse, and there was proof, too, that she was then a woman of good repute. In addition to her own testimony, there was evidence tending to show a subsisting promise of marriage when the alleged offense was committed, and on the whole we think the evidence was sufficient to sustain the verdict of the jury.
The main objections urged against the conviction are based on the charge given to the jury. First, there is a complaint of an instruction as to how the jury might regard the testimony of a witness who had intentionally testified falsely on a material matter in the trial. A single sentence is selected from the instruction, .which when isolated from the remainder might seem to be objectionable because of the use of an inapt word; but when the whole instruction is read, together'with the other portions of the charge bearing upon the same subject, we think the instruc tion was neither misleading nor prejudicial. Instructions are to be construed as a whole, and an inaccurate expression in one of them is not a ground for reversal where it appears from the entire charge that the jury were not led astray by the inaccuracy.
Complaint is made of the seventh instruction because the jury were told that it was not necessary that the promise of marriage shall have been the sole inducement to the intercourse, . nor that the prosecutrix yielded to such intercourse solely because of the promise of marriage. There is no cause, however, to complain of this instruction, because in connection with the statement, and as a part of it, the court told the jury that “ it is necessary to prove beyond reasonable doubt that the defendant promised to marry the said Nancy Para-more if she would yield to his solicitations for the intercourse, and that she yielded -because of such promise, and without such promise being made she would not have yielded.”
Testimony was offered by defendant of acts of carnal intercourse by the defendant and the complaining witness shortly before the time of the alleged offense, and in this respect the ° . n court told the jury that such specific acts of illicit intercourse were not competent for the purpose of impeaching her character for chastity. Of this instruction complaint is made. It is framed in accordance with and apparently based upon the rule stated in the case of The State v. Bryan (34 Kan. 63, 8 Pac. 260), where it was held that particular acts of unchastity or specific acts of illicit intercourse by the prosecutrix with other persons could not be offered to prove that she was not of good repute at the time the alleged offense is charged to have been committed. No satisfactory reason has been given for overruling that case, but, on the other hand, we think it fairly and correctly states the rule applicable in such cases.
Other objections to the instructions are suggested, none of which are deemed to be material or to require special comment.
On the motion for a new trial the affidavits of the attorneys for the defendant were introduced to the effect that at some of the adjournments J had during the trial the judge failed to give the jury the full statutory admonition. They state that in some instances he abbreviated the admonitions by referring to admonitions previously given. This testimony conflicts with the record of the court proceedings, in which it appears that at each adjournment the jury were admonished as the law requires. Record evidence cannot be overthrown by testimony of this character; but even if the record evidence were absent, the point would not we think be available to the defendant. His counsel state that they observed and at the time made a note of what they noticed were incomplete admonitions ; but it does not appear that they called the attention of the court to the mistake, if any was made, or that any exception was taken to it. In fairness to the court, mistakes of that character should be called to its attention at the time, in order that they may be corrected ; and a party who observes them but sits silently by cannot rely upon them as grounds of error.
A new trial was asked for on the ground of newly discovered evidence, but an examination of the evidence relied upon convinces us that it is not of such a character as to warrant the granting of a new trial.
We think no material error was committed, and therefore the judgment of the District Court will be affirmed. | [
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Per Curiam.
The plaintiff in error sued to foreclose a mortgage on real estate. One of the defendants died, and an order of revivor was procured. The defendants moved to dismiss, with prejudice to a future action, because the order of revivor was irregularly obtained and because the time for re-institution of the suit was barred by statute. Pending the decision of this motion, the plaintiff offered to dismiss the action without prejudice to the institution of a new one, which the court refused to allow it to do, and evidence was then taken on defendant’s motion to dismiss with prejudice. This • motion was sustained. Error was prosecuted to this court from these proceedings and the judgment reversed. Banking Co. v. Ball, 57 Kan. 812, 48 Pac. 137. While the case was pending in this court, the plaintiff brought another action for the foreclosure of its mortgage. To this action the proceedings and judgment had on the hearing of the first action were interposed in bar. The plea of res adjudícala was sustained; from which decision the plaintiff again prosecutes error to this court.
As held on the former hearing, the right of the plaintiff to dismiss its action was absolute. The question now presented is whether the order refusing the dismissal was non-jurisdictional. We think -it was. When, the motion to dismiss was made and called to the attention of the court, its jurisdiction over the parties and the subject-matter of the action was at an end for all purposes except to render and enter a formal order of dismissal. There are two cases (Oberlander v. Confrey, 38 Kan. 462, 17 Pac. 88; Allen v. Dodson, 39 id. 220, 17 Pac. 667) which may seem to militate against these views, but the facts of both of them are quite dissimilar. In neither of these cases was the motion to dismiss called to the attention of the court, so as to invoke” its action and terminate its jurisdiction. In one of them, the motion to dismiss was merely filed among the papers. In the other, the plaintiff noted his dismissal on the appearance docket. The theory of these cases is that, while the plaintiff may as a matter of right dismiss Ms action, he must do so in accordance with regular forms of procedure; failing to observe which, the court retains jurisdiction. The court, however, cannot retain jurisdiction if the plaintiff dismisses in compliance with prescribed forms, and gives it an opportunity to note the withdrawal of the party from its jurisdiction. The statute gives to the one who institutes the action an absolute right to withdraw from the jurisdiction he had invoked, if he desires to do so and will signify his desire in the proper way. The judgment of the court below is, therefore, reversed for proceedings in accordance with'this opinion. | [
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Johnston, J.
This was an action by Josie Webb to recover from John S. Branner an undivided one-fourth interest in a valuable lot in the city of Topeka, together with the rents and profits thereof.
Prior to October 10, 1875, the lot was jointly owned by Jacob Kline and John S. Branner, who were engaged in business together under ■ the firm name of Branner & Kline. On the date mentioned Jacob Kline died intestate, leaving as his only heirs Josie Kline, now Josie Webb, who was then six years of age, and another daughter, Millie Kline. On October 15, 1875, Branner was appointed administrator of the estate of Jacob Kline, and continued to act in that capacity until December 29, 1880, when he made what is termed his final report, to which was attached an affidavit that all the debts of the estate were fully paid and that the estate was fully administered. Plis final account was accepted and he was discharged by the probate court as administrator.
It further appears that on January 10, 1876, he undertook to administer the estate of the firm of Branner &' Kline, as surviving partner, and under direction of the probate court gave a bond, as surviving partner, and that he made an inventory and filed accounts as such surviving partner. In the inventory of the partnership property the lot in question was described. On January 6,1877, he was appointed and qualified as guardian of the persons and estates of Josie Kline and Millie Kline, and continued to act as such, guardian during their minority. On March 26, 1881, Branner applied for and obtained an order of the probate court authorizing him to sell the lot in question for the payment of partnership debts. On December 13, 1881, he reported that he had sold an undivided half of the lot to Otto Kuehne for $3,000. Aii order was entered approving the sale and directing that a deed be executed to Kuehne. A deed was executed, purporting to convey one-half of the lot, and on the following day Kuehne in turn conveyed the same interest to Branner. At the time of the sale of the lot the plaintiff was an infant about twelve years of age. Shortly after the making of the deeds Branner erected a' building on the lot, the cost of which was estimated at from $7,000 to $10,000. At the time the deed was executed from Kuehne to Branner there was a small frame building upon the lot, of little value, but since the erection of the larger building in 1881 the rental value of the lot has been $210 per month.
In 1891 an account was filed by Branner, as guardian of the person and estate of the plaintiff, in whicíi it was stated that she was indebted to him as guardian in the sum of $4^406.96, and which the court made a charge on the estate inherited by the plaintiff from her father. An order was entered discharging Branner and his sureties from liability by reason of his guardianship, but in the order there was an exception of any .property or estate inherited by the plaintiff and her sister or either of them in which Branner owned or owns any interest as surviving partner of Jacob Kline. In 1892 another report, designated as the final report as guardian of the children of Jacob Kline and as surviving partner of the firm of Branner & Kline, was presented to the probate court, and on April 20 of that year this report was examined by the probate court, the plaintiff being present in person and represented by attorneys. During the consideration of this account the plaintiff and her attorneys objected to various items and resisted the allowance of the account.
The court found that there was due from the plaintiff to her guardian, Branner, the sum of $1,146.52, and that there was due from Branner, the guardian, to Millie Kline the sum of $3,350.44, and directed that when these amounts were paid, as well as some allowances of attorney’s fees, and costs, that Branner, as guardian and surviving partner, should be discharged from his trust, and that the sureties upon his bond should be relieved from liability by reason of the trust. Shortly after the making of this order the plaintiff paid the amount found by the probate court to be due from her to the guardian to her sister, and this amount was credited upon the indebtedness of Branner to the sister. About two years after the settlement, this proceeding was begun.
The plaintiff claims that' as one of the heirs of her father she inherited a one-fourth interest in the lot, and that the proceedings by which Branner obtained the conveyance of the lot were irregular and void, and he therefore took no title by virtue of those proceedings. On the part of Branner, it is claimed that the lot was sold under the direction and with the approval of the probate court, for a fair price ; that the proceeds were applied to the payment of partnership debts ; and that if the proceedings were irregular and void, they have been ratified and acquiesced in by the plaintiff to such an extent that she is estopped from asserting title to the lot. The trial resulted in favor of Branner, and the plaintiff brings the case here, alleging errors in the admission of testimony, in charging the jhry, and in upholding the verdict.
The determination of the errors assigned rests to some extent on the testimony, and the defendant urges that the testimony has i not been so preserved as to make the errors available. .There is a recital in the case-made that it contains “ the substance of all the testimony,” and this we think is sufficient to warrant a review. Cavender v. Roberson, 33 Kan. 626, 7 Pac. 152.
Prom the testimony it appears that the proceedings for the sale of the lot were fatally defective, and the trial court instructed the jury that the orders of the probate court relating to sale and confirmation were absolutely void, and that the deeds from Branner to Kuehne and from Kuehne back to Branner were also void, and did not operate to transfer any title in the property to Branner. Aside from the invalidity of the proceedings preliminary to the sale, and at the sale itself, the act of Branner was in effect an attempt to purchase trust property from himself as trustee. While the deed was executed to Kuehne, it is clearly shown that he did not purchase the lot, did not pay any consideration for it, and did not receive any consideration when he subsequently made a deed to Branner. He simply took the deed and executed another at the instance of Branner, and for his accommodation. While upon the face of the proceedings it appeared to be a bona filie sale and an actual transfer of the lot, it was only a device by which Branner undertook to indirectly acquire title from himself as trustee, and was as much a violation of the fiduciary relation and as great a fraud in the eye of the law as though he had made a direct sale to himself. Whether the heirs of Kline knew that the sale to Kuehne was not a bona fide transaction until about the time this action was brought d.oes not appear, nor is there any direct testimony why Branner resorted to this means of obtaining the lot. It was shown that a fair price was obtained for the lot, but there being a manifest conflict between the duties of the trustee and his personal interests, the courts, for the purpose of removing all opportunity for fraud, generally hold such transfers to be void, whether they appear to be fair or not. The general rule is that the trustee is disabled from purchasing trust property, whether the purchase is made directly by himself or through another, and besides we have a legislative prohibition. Every administrator or guardian when he reports a sale of real estate is required to make an affidavit that “he did not, directly or indirectly, purchase such real estate, or any part thereof, or any interest therein.” Gen. Stat. 1897, ch. 107, §§ 132, 133; ch. 108, §§ 17, 18. Proof of the .making of these deeds was admitted in evidence, not for the purpose of showing a transfer of title, but only to aid the jury in determining whether Branner had acted openly and fairly in the settlement of the estate. The court having determined that the sale and deeds were void, there was no transfer of the title, and the plaintiff retained her interest in the property unless it has been otherwise transferred, or that by reason of her conduct she is estopped from asserting her title. On this question the court instructed the jury :
“If you find from the evidence in this case that in the disposition of this property by John S. Branner as the surviving partner of Branner & Kline he was acting in good faith, and that in disposing of it in the manner in which he did he procured the full value of the property, and that the proceeds of this property disposed of in the manner in which it was used in the payment of partnership debts, or that the fund created by this sale was carried into the general partnership fund by the surviving partner, and that the plaintiff knew of the manner in which this property had been disposed of and acquiesced therein and received the proceeds of the sale through a settlement in 1892; .then I instruct you that she would be estopped from asserting title to this property, and could not recover in this action, although the deed through which defendant claims is void.”
In another instruction the jury were told that if the sale was made for the payment of jjartnership debts, and the money received was the fair value of the lot at the time, and that it went into the general partnership fund, and that thereafter Branner took possession of the lot and made lasting and valuable improvements thereon, “and that plaintiff knew of the manner in which this lot had been disposed of, and permitted Branner to make lasting and valuable improvements upon the premises and was present in person or by attorney in the probate court at the time the defendant made his final settlement as surviving .partner, and that he reported at that time the manner in which this lot had been disposed of, and that a final settlement was then had, which settlement was accepted by plaintiff and she received the proceeds of this settlement; then and in that event I instruct you that she would be estopped from now asserting title to this property.”
We think there is good reason to complain of these instructions. To constitute an estoppel which will prevent plaintiff from asserting title to her property, it must appear that she had full knowledge of the situation and of the facts bearing upon the invalidity of the transfer. She ought not to be concluded if she was ignorant of the facts upon which her rights are founded. One of the important facts is the knowledge that the sale to Kuehne was a pretense, and that ' Branner had in fact purchased the trust property for himself. On the face of the record, Kuehne appeared t,o be an actual purchaser, and so far as the testimony: shows, the plaintiff did not know the real facts in the case at the time the alleged final settlement was made. If she had known of the violation of the trust in respect to the sale she might not have acquiesced in the settlement. A knowledge of that fact would naturally lead the plaintiff to scrutinize more closely the acts and doings of the trustee, and she would be less likely to accept his statements or rely upon the report which he made than if she had kilown that Kuehne was a mere instrument employed by Branner for the purpose of getting the property into his own hands.
What was said or done at the settlement can have had little effect on Branner. His improvements were made about ten years prior to the settlement and while the plaintiff was an infant. If at that x time she had executed a deed to Branner for ^he property and had received the value of it, she would not have been estopped to claim the lot on attaining her majority. It appears that she was only twelve or thirteen years of age when the improvements were made, and therefore it cannot be said that Branner was induced to spend his money or part with the value of the improvements because of the representations of plaintiff or by reason of any acquiescence or ratification of his wrongful and invalid acts. The instructions omit any mention of knowledge by the plaintiff that Branner had fraudulently taken the title to himself, instead of making a bona fide sale to Kuehne; and they are also faulty in making it a ground of estoppel if the plaintiff knew of the manner in which the lot was disposed of and permitted Branner to make lasting and valuable improvements upon the premises. These improvements, as we have seen, were made during the infancy of plaintiff, and the facts stated as to the improvements, however extended her knowledge, would not conclude her.
The plaintiff’s conduct at the settlement and since that time may be made the basis of an estoppel if the facts warrant one. She appeared at the settlement with her attorneys and resisted the allowance of the defendant’s accounts. Notwithstanding her objections and resistance, the court found that there was due from her to the defendant $1,146.52. This amount she paid, and this is the basis of the claim of estoppel. Her action was brought about two years after the settlement was made. She is not seeking to recover the money back, but the defendant is insisting on the estoppel because she acquiesced in the settlement and paid the amount awarded against her. We are inclined to think, however, that if she with full knowledge of all the facts and circumstances took a credit for the purchase money of the lot in the settlement that was made, and afterward acquiesced in and ratified it by the payment of the amount awarded against her, she would be bound, and could not thereafter claim title to the property. On the other hand, if the defendant failed to act irngood faith, and if by reason of his fraud and concealment the plaintiff was not aware of the real facts in the case, the estoppel would fail.
It having been determined that the deed was void, the estate of Kline cannot be regarded as settled, at least so far as the lot in question is concerned. An attempt was made to inquire into the settlement, and it was claimed that Branner in his accounting had given himself credit for the payment of a claim which had already been credited in his final settlement as administrator. Assuming that such was the fact, the court was asked to instruct the jury that if they found such credits aggregated $6,000, or more, they should find that the plaintiff had not received the proceeds of the alleged sale by him of the undivided half of the lot in question. We think the instruction should have been given. If the final accounting and settlement are not binding on the plaintiff, and the estate is still open, a full inquiry should be allowed as to the good faith and honesty of Branner in administering his trust; and if the value of the lot has been wrongfully withheld from the plaintiff, it cannot be said that the lot has been paid for.
There is room to criticise the language of the court in speaking of the conduct of Branner in the settlement of the partnership estate. It is stated that there have been irregularities in the proceedings, and the court remarks that it would seem “that these irregularities have arisen, partly at least, by the misapprehension of the probate judge of this county as to what his duties were in relation to the settlement of partnership estates by a surviving partner, and partly by a misapprehension or misconception of the law in relation thereto by the surviving partner in regard to his duty with respect to the partnership property.” On the part of the plaintiff it is claimed that there was more than a misapprehension or misconception of the law by the defendant; it.is in fact contended that he acted fraudulently ; but the instruction quoted would seem to exclude the idea that there was any fraud or wrong on the part of the defendant, and may have led the jury to think that the irregularities referred to were merely the results of mistakes of law. The good faith and honesty of Branner is an important consideration in the case, and especially where he claims -an estoppel against the plaintiff, and we think, therefore, that the reference to misapprehension and misconception of the law may have been misleading.
For the errors pointed out the judgment will be reversed and the cause remanded for a new trial. | [
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Johnston, J.
In April, 1893, Max Popritz was employed as an engineer by the receiver of the Kansas City, Wyandotte & Northwestern Railroad Company, and on • April 30, 1893, while operating a switch-engine in the yards of the company at Kansas City, he was killed by the derailment of the engine. Emma Popritz, his wife, brought this action in the district court against the receiyer, alleging that the death of her.husband was caused by the negligence of the receiver. The specific negligence alleged as a basis of recovery is that the railroad track was negligently constructed, “ and in consequence thereof, the same and the bed thereof not having sufficient ballast and ties thereunder, the ties being rotten and too far apart, and the track and road-bed uneven, and the joints being low and sunken, and the' switch and switch-rail being broken and otherwise out of order, and the iron rails being old and worn out and unfit for use ; the engine jumped and ran off the track and turned over upon said Popritz, inflicting injuries which resulted in his death,” etc.
The answer of the receiver was : First, a general denial; second, that the Federal court which appointed Erb as a receiver made an oi’der in December, 1893, requiring all persons having claims or demands against the receiver to present the same to the special master on or before January, 1894; but that the plaintiff did not present or file any claim with the special master. In the same connection it was alleged that the receiver had sold the railroad and its equipment, and the sale thereof had been confirmed and a deed issued to the purchaser; and, further, that the proceeds of the sale were thereafter, under the ox’der of the Federal court, disbursed, and all assets which had come into the hands of the receiver had been taken therefrom and were beyond his control.
The third defense was that Popritz was an experienced engineer and thoroughly acquainted with the tracks, road-bed and engines of the Company, and that all injuries received by him at the time of his death were the result of his own negligence ; that he had traveled over the track many times each day for many months prior to the accident, and that if it was defective, as alleged, it must have been apparent to him; but that he made no complaint to the receiver or any of his superior officers. It was further alleged that he had run the engine in violation of the rules and regulations of the Company.
A demurrer was filed by the plaintiff to the second ground of defense, which alleged that the plaintiff below had failed to present her demand to the special master, and further, that the receiver had sold the road and disposed of the property which had been committed to his care. The demurrer' was sustained, the court holding that these averments were insufficient to constitute a defense to the plaintiff’s action. Upon the trial the jury found in favor of the plaintiff and assessed her damages in the sum of eight thousand dollars. The receiver assigns as error the ruling of the court upon the demurrer to the second defense set up in his answer.
The first branch of the defense in question is manifestly insufficient. The fact that notice was given to claimants to present their claims to the special master within a specified time did not preclude tiie continuation oi the action ot the . plaintiff below noi* the final adjudication of her claim in the district court. The Federal laws provide that a receiver may be sued in the State courts without leave of the Federal courts appointing the receiver, and the judgment rendered in the State court is conclusive upon the Federal court as to the existence and amount of the plaintiff’s claim. 25 U. S. Statutes at Large, 436; Reinhart v. Sutton, 58 Kan. 726, 51 Pac. 221. That it was not the purpose of the Federal court to require claimants to adjudicate their claims before the master, or in the Federal court alone, is manifest from the order appointing the receiver. It specifically provided that the receiver should operate the road conformably to the laws of the State, and might be sued in the State courts for debts and liabilities incurred by him in the operation of the road; and in order to accommodate claimants, it was provided that the receiver should appoint an agent in each county through which the road runs upon whom process issued against the receiver might be served. There was a further provision that judgments obtained against the receiver in the State courts should be audited and allowed as of course as adjudicated claims upon the filing of a transcript of the same in the Federal court.
The remaining averments, that the railroad had been sold, and that the property had passed out of the possession and beyond the control of the receiver, hardly measure up to a valid defense> it is true, the liability of the receiver for the Popritz claim, if liable at all, is official, and not personal, and a judgment rendered against him as receiver is payable only out of trust property and funds in the custody of the court for' which he was acting. When his agency has ceased and the receivership terminated, his successor should be substituted in any pending litigation upon liabilities arising during his administration. Here, however, it does not appear that the receivership is ended. His official character remains until he has been dis charged by the court which appointed him ; and there is no averment that he has been discharged. Evidently the court has not relinquished its hold upon the case, and if it has reserved any fund out of which to meet liabilities like the one in question, it might require it to be paid through the agency of the receiver. At any rate, he is still receiver, and occupies the same status and relation toward the court that he has since his appointment. An order of discharge would have extinguished his representative character, but for some reason the court has not closed the receivership, and no substitution could well be made while it continued. We think the court ruled correctly in sustaining the demurrer.
To sustain the claim that Popritz was acting with due care at the time of the accident, a witness was asked and allowed to state as to the general reputation of Popritz and his fireman for care and prudence. Over an objection that the question called for a mere opinion and was not a proper subject for expert testimony the witness was allowed , _ - _ . . , t-. . . to answer, and he characterized Popritz and his fireman as first-class men for prudence and care in their work. An ineffectual effort was made in behalf of the defendant to have the evidence stricken out and although clearly inadmissible it was allowed to remain for the consideration of the jury. An issue had been tendered as to the care exercised by Popritz, but it could not be established by proof of this character. It has already been determined in -this State that evidence as to the character of an injured person for care and prudence is not competent or admissible. It is held that the matter of negligence is to be determined by the character of the specific act or omission, and not by the general character for care that the person may sustain. S. K. Rly. Co. v. Robbins, 43 Kan. 145, 23 Pac. 113; Coal Co. v. Dickson, 55 id. 62, 39 Pac. 691. If the general character of the injured person may be shown, the Company would necessarily have the right to show by the opinions or estimates of witnesses that he was a reckless and careless man; and it might also show that his co-employees had the reputation for being careful in the performance of their duties. The general rule is that in cases of this kind the character of neither party thereto, nor of any other person, is involved. One exception to this rule is where it is charged that the master is negligent in employing unskilful or incompetent servants. In such a case it may be shown that a servant employed had a general reputation for incompetency, the theory being that it is the duty of the master to exercise care in the selection of employees ; and where a person is generally known and reputed to be reckless and unfit, evidence of the fact that he bore that reputation is competent as tending to show that the master could and should have known of his unfitness and lack of care. The present case, however, does not come within this or any other of the exceptions and the authorities generally hold that evidence of the character introduced is incompetent. Chase v. Maine Central Rld. Co., 77 Me. 62; Jolly v. Drawbridge Co., 9 Ind. 417; McDonald v. Savoy, 110 Mass. 49; Tenney v. Tuttle, 1 Allen 185; Adams v. C. M. & St. P. Rly. Co., 93 Ia. 565; Railroad Co. v. Smith, 94 Ga. 107; 5 Am. & Eng. Encyc. Law (2d ed.), 861.
Some witnesses who were not present when the engine Avas derailed were allowed to give their opinions as to the cause of the derailment, and whether it was the result of defective track. The cause of the wreck was the mam question involved in the case and was to be determined by the jury from all the testimony. Wit nesses cannot take the place of jurors, and their opinions cannot be substituted for that of the jury. Testimony as to the construction of the road and the conditions existing after the accident was competent. The appearance of the road, the quality of the ties, the condition of the rails, could be easily and adequately described to the jurors, leaving them to draw inferences as to the ultimate fact or cause of the wreck. It was, therefore, unnecessary to resort to opinion evidence, and the general rule is that the opinion of witnesses is only admissible upon the ground of necessity but can never be given upon the ultimate facts which it is the duty of the jury to determine. Here, the opinion of a witness, who was a basket-maker, was taken as to the cause of the engine leaving the track. He was without railroad experience or any qualification to speak as an expert, even if the injury could be regarded as a subject of expert testimony. Other witnesses of little or no railroad experience also gave testimony which was open to the same objection and should have been excluded from the jury.
Objection is also made to the testimony of a witness as to the expectancy of life of the„deceased. Instead of offering standard life-tables showing p o the probable duration of life, the witness wag apowe(J state Ms recollection of what the tables showed. He was engaged in the insurance business and claimed to be acquainted with the mortality tables used by life insurance companies. Among others, he stated that "he had knowledge of the Actuaries, Carlysle and the American, but instead of submitting the tables he undertook to give the expectancy of life of one as old as Popritz was at the time of his death. The witness was not a physician and had no special qualifications which enabled him to determine the probable duration of Popritz’s life, but depended entirely upon such information as he had acquired from standard tables which he happened to have consulted in connection with the insurance business. Where recovery is sought in cases of death or permanent injury, standard life-tables may be introduced to show the probable duration of life of one injured or killed, but the statements of one who has no knowledge upon the subject, except such as he may have gained from consulting such tables, is not the best evidence.
Error is assigned on the rulings of the court in charging the jury but we find nothing substantial in the objections made by the plaintiff in error ; nor do we find anything to warrant special comment in the objections made to the rulings of the court upon the special questions which were presented for submission or submitted to the jury.
For the errors mentioned, however, the judgment will be reversed, and the cause remanded for. a new trial. | [
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Allen, J.
The question in this case is, whether the defendant in error, Heath, was released from liability on a note for $3500, payable to plaintiff in error, signed by Alfred Johnson, A. E. Johnson, Chas. N. Johnson, and J. L. Heath, which at the time of its execution was secured by a mortgage executed by Alfred Johnson and wife on twelve hundred acres of land in Anderson County, by the failure of Redlon to have the mortgage recorded. Although there is some discrepancy between the statements of Heath and Redlon as to what transpired at the time the papers were executed, it is clear from Redlon’s own testimony that he knew that Heath was surety of the Johnsons as to a considerable part of the debt at least. The testimony of the defendant, however, was accepted by the jury as the truth, and must be so accepted here. This shows that Heath was surety of the Johnsons as to the whole amount of the debt; that this was known to Redlon at the time the note was executed, and that, in consideration of Heath becoming such surety, Redlon agreed to take the mortgage and have it recorded for Heath’s protection as well as for his own. Heath asked Redlon to permit him to take the mortgage to Garnett at once and have it recorded; but Redlon refused his request, and, instead, took it to Girard, where he delivered it to an abstracter, vfho, instead of sending’ it. to Anderson County, -where the land was situated, had it recorded in Allen County. The mistake was not discovered until long after, and in the interval, other mortgages, exceeding in amount the value of the land, were executed and properly recorded. Under this state of facts, the jury found a general verdict in favor of the defendant. The labored discussion of the testimony by counsel for plaintiff in error avails nothing before this court. The findings of the jury, based on ample testimony, dispose of the controversy as to the facts. Although Heath was liable as a principal on the twenty-four hundred dollar note, which was surrendered at the time the one in suit was executed, his testimony shows that as between himself and the Johnsons but four hundred dollars and interest on it was his debt, and that he paid that amount to Redlon at the time, and that Redlon knew that as to the balance he was really only a surety for the Johnsons.
The only legal proposition urged against the judgment is that a surety is not discharged by the mere negligence of the creditor; that there must be some affirmative act operating as a discharge. It is said that in this case the plaintiff took the reasonable precaution to submit the mortgage to an abstracter for examination before having it recorded, and that the failure to send it to the proper county was not his fault but that of the abstracter. '
■ It is familiar law that the neglect of the agent is the neglect of the principal. The plaintiff cannot be excused from the consequences of the act or neglect of his agent. In support of the proposition that the mere neglect of the creditor to record his mortgage does not discharge the surety, the following cases are cited: Hampton v. Levy, 1 McCord, Ch. (S. C.) 107; Lang v. Brevard, 3 Strob. (S. C. Eq.) 59; Philbrooks v. McEwen, 29 Ind. 347. Counsel for plaintiff in error also calls attention to the following authorities supporting the general doctrine that mere passiveness or neglect on the part of the creditor will not discharge the surety: Turner v. Hale, 8 Kan. 38; 1 Story’s Equity Jurisprudence (13th ed.), § 325; King v. Baldwin, 17 Johns. (N.Y.) 384; notes to Rees v. Berrington, 2 L. C. Eq. 1867.
On the other hand, supporting the general proposition that a surety maybe discharged by the neglect of the creditor to preserve other securities, counsel for defendant in error calls attention to the following authorities: Watson v. Alcock, 19 Eng. L. & Eq. 64; Nelson v. Munch, 28 Minn. 314; Lumsden v. Leonard, 55 Ga. 374; Schroeppell v. Shaw, 3 Comst. (N. Y.), 446; Mingus v. Daugherty, 87 Ia. 56. In the case of Toomer v. Dickerson, 37 Ga. 427, it was held that a neglect to record a chattel mortgage on negroes, within the time required by law, discharged the sureties on the obligation given for their purchase. In the case of Crim v. Fleming, 101 Ind. 154, commenting on the conflict of authorities as to the soundness of the rule declared in Philbrooks v. McEwen, supra, it was said :
“But the case in hand is not within that rule, for here there was an express agreement to collect, and this makes an essential difference, for a breach of an agreement cannot be justly regarded as inaction or passive neglect.”
In the case of Lang v. Brevard, supra, strongly relied on by counsel for plaintiff in error, it is said :
“For acts of mere passive sufferance, omission, and delay, the surety will not be discharged. And this rule is the more reasonable, inasmuch as a surety thus aggrieved has the remedy in his own hands ; and by various alternative modes of procedure may redress himself. He may convert the passive negligence and delay of the creditor into a positive wrong, by demanding that he proceed to the collection of his debt. If the requisition be not complied with, in a reasonably diligent manner, and the principal becomes insolvent, it will afford ground for relief.”
There would seem to be strong ground for holding a creditor, who takes, at the same time, the obligation of a surety and a mortgage on the property of the principal debtor, to such diligence as may be necessary to preserve his security on the property. The plainest dictates of ordinary prudence require that a mortgage on real estate should be promptly recorded. The testimony of Heath is to the effect that he was induced to sign the new note by the execution of the mortgage for his protection as well as for that of the plaintiff, and that this was talked over and clearly understood by the parties. No reason is apparent why Redlon should not be held to his positive agreement to record the mortgage without delay. Had he done so, the evidence shows that the mortgaged land was of sufficient value to have paid the prior incumbrances as well as his own. By his neglect to record his mortgage, other mortgages, sufficient in amount to absorb the entire property, took precedence and swept his security away. It is manifestly just that the plaintiff, whose negligent failure to comply with his positive agreement has occasioned the loss, should alone bear it.
Some comment is made on the special findings. It is claimed that they do not support the judgment; that they are inconsistent with the general verdict, and not supported by the testimony. Neither of these claims can be sustained.
The judgment is affirmed. | [
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Allen, J.
Fred Smith brought suit in the District Court of Leavenworth County against the Union Pacific Railway Company and S. H. H. Clark and others as receivers of the Union Pacific Railway Company, to recover damages for personal injuries alleged to have been caused by the negligence of the servants of the defendants. The petition alleges that the Railway Company owned and operated at the time of the injury aline of railroad extending from Third Street, in the City of Leavenworth, along Choctaw Street to Broadway, and thence to Topeka; that in an action pending in the Circuit Court of the United States, the defendants, Clark, Mink, Anderson, Doane and Coudert, were appointed receivers of the Union Pacific Railway Company, and of all its branches, leased lines, tracks, locomotives and cars, and authorized to manage and operate the same; that before and ever since the sixth of January 1894 the Railway Company and the Receivers used and operated their engines and cars over the line of road on Choctaw Street, and across Fourth Street, in the City of Leavenworth ; that on the sixth of January 1894 plaintiff was driving his horse hitched to a cart along Fourth Street toward the crossing of the railroad on Choctaw Street; that as he approached Choctaw Street, Union Pacific engine No. 1204, with cars attached thereto, in charge of the defendant’s engineer and servants, was backed across Fourth Street; that when the plaintiff was within about thirty feet of the track, he stopped his horse to wait until the train should pass; that while so waiting, the defendant’s servants in charge of the engine carelessly and unnecessarily reversed the engine and suddenly opened the steam-cocks on the cylinder of the engine, thereby emitting a cloud of steam in the face of the plaintiff’s horse, and causing startling, hissing noises, which so frightened plaintiff’s horse that it became unmanageable, ran away, upset his cart, and threw him with great violence against the edge of the sidewalk, breaking his right clavicle and otherwise injuring him.
The petition alleges that the horse was gentle, and accustomed to the usual and ordinary operation of trains, from which he did not take fright. Other matters are alleged which it,is unnecessary to state. To this petition the Railway Company and the Receivers filed separate demurrers, on the ground that there was a defect of parties defendant and that the petition did not state facts sufficient to constitute a cause of action. Both demurrers were overruled. The defendants then answered separately, denying specially that on the sixth of January, 1894, they were operating, or had any authority to operate, the railroad of the Leavenworth, Topeka & South Western Railway Company, or any portion'thereof ; and alleging that whatever injury the plaintiff received was caused by his own fault and negligence. The plaintiff replied, denying the averments of the answer. When the case was called for trial, the defendants severally moved that the plaintiff be required to elect against which of the defendants he would proceed to trial and ask for judgment. This motion was overruled. The case was tried to a jury, and resulted in a verdict and judgment .in favor of the plaintiff for five thousand dollars damages. The Railway Company and the Receivers now seek a reversal of the judgment.
The main contention of counsel for plaintiff in error is, that the claims of the plaintiff, as set forth in the petition and urged at the trial, are inconsistent; that it cannot be that the Railway Company, and the Re ceivers appointed by the court to take charge of and operate its property, were both in control of the property at the same time. It is also contended that, as a matter of fact, neither the Union Pacific Railway Company, nor the Receivers, operated the Leavenworth, Topeka & South Western Railway, or the engine which -caused the inj ury to the plaintiff.
The petition was not demurrable on the ground of a defect of parties defendant. A defect of parties, within the meaning of the statute, is a lack of parties, not an excess. McKee v. Eaton, 26 Kan. 226; Hurd v. Simpson, 47 id. 372, 27 Pac. 961. The petition certainly stated facts sufficient to constitute a cause of action against the Receivers. We are not prepared to say that it is palpably impossible that there should be a legal liability resting on the Railway Company and its Receivers for the same act.
There was no error in refusing to require the plaintiff to elect against which defendant he would proceed. He had a right to prosecute his action against both, and recover judgment against whichever the proof might show was liable. The facts disclosed at the tóali however, clearly show, without¿iSpUt6i that all the property of the Railway Company, with which we have any concern in this case, was under the management and control of the Receivers, and they, as such receivers, were alone responsible for the acts of the servants in charge of the engine. The order appointing the Receivers appears to have been made by Judge Dundy at Omaha on the thirteenth of October, 1893. The appointment was made in an action brought by Oliver Ames and others against the Union Pacific Railway Company and a large number of other corporations, among which the name of the Leavenworth, Topeka & South Western Railway Company does not appear. The Receivers were directed to take charge of all the property of the Union Pacific Railway Company, and also all the system of railways then in the possession of, owned, operated, leased or controlled by, for, or in the interest of, the said corporations in the states of Nebraska, Kansas, and other states and territories named. The distinction sought to be made at the trial, and in this court, between the Union Pacific Railway and the Union Pacific System may be sound, as affecting the liability of the Railway Company, but it is perfectly clear that the Receivers were, in fact, the receivers of the Union Pacific System.
The engineer and fireman in charge of Union Pacific engine No. 1204 at the time the plaintiff received his injury testified that they were employed to work for the Union Pacific, and that they received their pay for their work in the month of January, 1894, from the Union Pacific pay-car, in checks bearing the names of the Receivers. • There is really no conflict in the evidence raising a substantial question as to who was operating this particular engine, nor as to its ownership. It is a matter of no consequence in in this case whether on the sixth of January, 1894, the Receivers were operating the Leavenworth, Topeka & South Western railroad with the rolling-stock of the Union Pacific, in charge of their employees, under a misapprehension as to the scope of the order appointing them, or not. The only matter which concerned the plaintiff was, that it was their servants operating the property under their control that caused his injury. The instruction of the court criticised by counsel is sound. The Receivers cannot claim exemption from liability merely because they were using the track of another company in the transaction of their business at the time the plaintiff was injured.
Whether letter-press copies of way bills showing the transfer of cars from the Santa Fe to the Union Pacific, produced in evidence by the agent of the Santa Fe from records kept under his direction,' were competent evidence for the purpose for which they were offered, is a matter of some doubt. But even if it be conceded that they were incompetent, the error in their admission is quite unimportant. The only bearing which the evidence had was in tending very remotely to prove who was operating Union Pacific engine No. 1204 on the sixth of January. This fact was clearly established by an abundance of competent and direct testimony.
The form of the verdict is criticised. It is as follows : “We, the jury, empanelled and sworn in the above entitled cause, do upon our oaths find for the plaintiff, and assess his damages at the sum of five thousand dollars.” This was in accordance with the instruction of the court which is also criticised. Under the view of the case already indicated, this verdict must be construed as one against the receivers only; no cause .of action having been proved against the railway company. It must also be held that the receivers were not materially prejudiced by the instruction of the court, or the submission of the case to the jury as one against both defendants.
The complaint urged because of the admission of the testimony of various witnesses to the effect that the engine causing the injury was a Union Pacific engine, and that the employees were employees of the Union Pacific, or the Union Pacific system, is without substance. In speaking of a railroad in the hands of receivers, it is usually designated by the name of the road, or of the corporation owning it, rather than that of the receivers. No confusion ordinarily arises, and there is none in this case. Proof that the property was Union Pacific property was competent evidence against the receivers, whose duty it was to have charge of the property. Proof that the employees were Union Pacific employees was good proof that they were employees of the Receivers, when the fact became clearly established that the Receivers had entire and exclusive control of all the properties of the company and of the transaction of all its business.
The judgment must be modified by setting aside the judgment against the Union Pacific Railway Company. The judgment against the Receivers is affirmed. | [
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Allen, J.
J. A. Gilmore, E. E. Gilmore and L. O. Gilmore were joint administrators of the estate of their father-, E. Gilmore, deceased. The defendant, L. C. Gilmore, was removed from the administration by an order of the probate court, which on appeal to the District Court was affirmed. L. C. Gilmore was the cashier of the National Bank of Paola, the other defendant in the case. He had received $12,841.19 of the assets of the estate, which he deposited in the bank. After he was removed as administrator, the plaintiffs, as the remaining administrators, demanded from him and the bank the funds belonging to the es-state. Payment was refused. Thereupon, this action was brought in the District Court of Miami County. From the amount received, the defendants had paid out, pursuant to the orders of the probate court, $8741.95, leaving a balance of $4099.24. The District Court gave judgment in favor of the plaintiffs against the defendants for this balance. The defendants claimed the right to retain this fund, on the ground that L. C. Gilmore was entitled to two thousand dollars out of the estate, in addition to his distributive share, to equal advancements made to the other heirs. The probate court allowed the claim. The administrators appealed from the allowance. Pie also claimed $1648.40 as one-half of the amount paid by him on a promissory note on which he and his father were co-sureties of the maker. The probate court also allowed this demand, and the administrators appealed from the allowance. There was a third claim, covering the balance of the funds in his hands, also in litigation in another action. The merits of these claims were not tried in this case, but the appealed cases were separately tried, and afterwards two of them were taken to the Court of Appeals for review, where the judgments were affirmed. 6 Kan. App. 453, 922, 50 Pac. 97. Petitions asking the certification of these cases to this court for review, and, also another case between the same parties, from the same court, relating to another matter in litigation between them, have been filed, and a motion submitted in this case to have all of the cases heard together.
The cases were decided by the Court of Appeals on the sixteenth of September last. The petitions to certify were not filed in this court until December 6. Under the statute, a discretionary order certify can only be made within sixty ¿ayg after the entry of the final judgment or order in the Court of Appeals. It is true that motions for a rehearing were filed in that court, which were not determined until November 11; but the order sought to be reviewed is that affirming the judgment of the trial court. The petition for a rehearing furnishes no basis for review by this court; the rehearing having been denied. The petitions to certify must, therefore, be dismissed.
The contention here is that the defendants had a right to retain the funds in their hands pending the litigation of L. C. Gilmore’s claims against the estate ; and it is urged that he is subjected to duplicate judgments, and is in danger of having to respond twice for the same claim. We find no such difficulty in the case. After the removal of L. C. Gilmore, the remaining administrators were entitled to the possession of the funds of the estate. Perhaps he might have litigated in this action all the claims he had against the estate, if some proper practice had been adopted to that ,end. But the course actually pursued by the parties, without objection, so far as appears from the record, was to try the cases separately. The answer of the defendant was that he had distributed the estate in accordance with the orders of the probate judge. This answer was not sustained by the testimony. He had no authority to pay his own claims until the appeals from the allowance • by the probate court were determined. In the meantime, the administrators were entitled to the funds of the estate. No difficulty is apparent owing to the separate judgments in the different cases.
With reference to the two thousand dollars, it appears that this claim was disallowed. Of course no judgment was rendered against him in that action for the recovery of that sum. In the case in which he claimed $1648.40, he obtained an allowance of $1146.40. The judgment in his favor in that case is a proper set-off against the judgment entered in this case, and he is entitled to credit for it.
The evidence is ample to support the findings of the court. In fact, there is no serious conflict as to the facts. No error is shown in the proceedings of the court, and the judgment is affirmed. | [
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Johnston, J.
This was a proceeding by D. M. Tip-ton, who had an unsatisfied judgment against D. W. and Lou K. McCalla, to subject certain real property to the payment of the judgment. It was alleged that an.execution issued upon the judgment had been returned unsatisfied, and that the judgment debtors had been and still were the owners of certain city lots in Wichita which they had pretended to convey to another, and that it was done for the fraudulent purpose of placing the property beyond the reach of their creditors; and it was further alleged that the deed of conveyance was without any consideration whatever and was received by the person to whom made with the knowlédge of the fraudulent purpose of the McOallas.
At the trial it was found and adjudged that the McOallas were the owners of the property, and judgment was rendered subjecting it to the payment of the judgment. The cause was taken to the Court of Appeals for review, and that co.urt reversed the judgment of the district court, and directed the trial court to give judgment in favor of the McCallas. McCalla v. Dougherty et al., 4 Kan. App. 410, 46 Pac. 30.
For the purpose of reviewing the judgment of the Court of Appeals this proceeding in error is instituted. The defendants in error challenge the jurisdiction of this court in a motion to dismiss, claiming that the action does not involve title to real estate within the meaning of section 14, chapter 96, Laws of 1895. That provision limits and defines when proceedings in error may be taken from a judgment of the Court of Appeals as a matter of right, and authorizes review ‘ ‘ in any case involving .... the title to real estate,’- etc. Unless therefore this proceeding can be said to involve the title to real estate the Supreme Court is without jurisdiction.
The main purpose of the suit is to obtain satisfaction of the judgment, and to accomplish this it is sought to have the real estate subjected to its payment. The .title to the land sought to be subjected is only collateral or incidental to the ultimate object of the action. It has already been held that the title of real estate is not involved within the meaning of this provision in an action to foreclose a mortgage upon land where the defendant pleaded title to the land in himself and it was said that although the question of title was litigated in such actions, it only arose incidentally, and therefore did not fall within the scope of section 14. Park v. Busenbark, ante, p. 65, 51 Pac. 907. In foreclosure cases the payment of the mortgage debt would satisfy the lien and end the litigation ; and so here, if the judgment debtors or the holder of the title of property subjected to the payment of the judgment pay the judgment the controversy would be concluded and the title to the property remain unaffected. As tending to sustain the view that title is not involved'in the sense that would vest this court with jurisdiction, we cite: C. B. & Q. R. R. Co. v. Watson, 105 Ill. 217; McClellan v. Hurd, 21 Col. 197, 40 Pac. 445; Scheeren v. Stramann, (Col.) 48 Pac. 966; May v. Jarvis-Conklin M. T. Co., 40 S. W. 122; Conkey v. Knight, 104 Ill. 337; Hupp v. Hupp, 153 Ill. 490, 39 N. E. 124.
Attention is called to the holding of one .of the justices of this court when a petition was filed for discretionary certification, that the case was' appealable as a matter of right. That was an ex parte application and an appeal to the exceptional judicial discretion of the court; and a ruling made in such case, when the record in the case and all the parties thereto were not before the judge or the court, is not deemed to have binding force and effect.
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Doster, C. J.
The defendant in error shipped his race horses, over the line of railway of plaintiff in error, from Fredonia to Pittsburg, Kansas. At the intermediate station of Columbus, the train upon which the animals were carried negligently collided with another train of the plaintiff in error. The horses were injured as a result of the collision. A suit for damages was instituted and a verdict and judgment for plaintiff were rendered. From this judgment the defendant below prosecutes error to this court.
The claims of error are based solely upon instructions given and requests for instructions refused. These instructions and refusals to instruct involve an interpretation of the contract of shipment entered into between the parties and a construction of the law relative to contractual limitations upon the liability of railroad companies as common carriers. The defendant in error engaged a car of the Company’s agent for the shipment of his horses, and executed with the agent an ordinary shipping contract on one of the Company’s usual printed forms. Prefixed to this contract, and at the top of the same sheet, was some other printed matter, in the following form :
Form 34^.
“ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY.
* RULES AND REGULATIONS POR THE TRANSPORTATION OP LIVE STOCK.
“ Live Stock, L. C. L., of all kinds, at the following-estimated weights : One horse (gelding and mare) or pony, mule or horned animal, 2,000 lbs. ; two animals, 3.500 lbs. ; three, 5,000 lbs. ; each additional animal, 1,000 lbs. Bulls, 2,000 lbs. each. Burros, 750 lbs. each. Calves (under 1 year), 500 lbs. each. Colts (under 1 year), 750 lbs. each. Cow and calf together, 2.500 lbs. Goats in crates, estimated weight, 200 lbs. each. Plogs, actual weight. Mare and colt (colt under 1 year), together, 2,500 lbs.; each additional colt (under 1 year old), 500 lbs. Sheep, 200 lbs. each. Stallions or jacks, 3,000 lbs. each.
“In case the owner or consignor agrees to save the St. Louis & San Francisco Railway Company from liability for any or of all the causes enumerated in the following contract, .and also agrees to load, unload, feed, water and attend to the stock himself, etc., as specified therein, the Special Rates of Tariff based on such contract, will be given.
“The said St. Louis & San Francisco Railway Company, as aforesaid, will not assume any liability in excess of the following valuation by shippers : Each horse or pony (gelding, mare or stallion), mule or jack, $100 ; each ox or bull, $50 ; each cow, $30 ; each calf, $10 ; each hog, $10 ; each sheep or goat, $3.
“Where the declared value exceeds the above, an addition of twenty-five per cent, will be made to the rate for each one hundred per cent, or fraction thereof of additional declared valuation per head. Animals exceeding in value $800 per head will be taken only by special arrangement.”
Immediately below the above rules and regulations was the contract proper, in the following form :
“LIVE-STOCK CONTRACT.
“ No. of cars, 16389. Initials, A. F.
Fredonia, Kans., Station, August 14, 1892.
“This agreement, made between the-St. Louis & San Francisco Rly. Co. of the first part and Wm. Sherlock of the second part, witnesseth : That whereas the said St. Louis & San Francisco Railway Co., as aforesaid, transports live stock only as per above rules and regulations, now, in consideration that the said party of the first part will transport for the party of the second part one car loads of horses to Pittsburg, Kansas, station, at the rate of 26.75 dollars per car load, the same being a special rate, lower than the regular rates mentioned in their tariff, the said party of the second part hereby releases said party of the first part from the liability of a common carrier in the transportation of said stock, and agrees that such liability shall be only that of a private carrier for hire, and from any liability for any delay in shipping said stock after the delivery thereof to the agent of said party of the first part, or for any delay in receiving the same after being tendered to said agent.
“The evidence that the said party of the second part, after a full understanding thereof, assents to all the conditions of the foregoing contract, is his signature hereto. J. D. Lingeneelter,
Agent for St. Louis & Sau Francisco Railway Company.
Wm. Sherlock, Shipper.
Witness : J. W. .Lingeneelter.
(To be other than either of the contractors.)
“Executed in duplicate.”
It is contended on behalf of the plaintiff in error that the declaration made in the contract proper, above quoted, that the railway company “ transports live stock only as per above rules and regulations,” incorporated such rules and regulations, by the refer ■ence thereto, into the contract of shipment, and thereby charged the shipper with notice that the Company assumed only a limited liability for the payment of losses, if any occurred, unless the value of the animals shipped was specially stated to exceed the schedule rate; and that the failure of the shipper to declare the value of his animals to be greater than the limited sum named, implied his assent to the Company’s declaration of limited liability; and it is forcibly contended that, inasmuch as the transportation charges were properly based in part upon the schedule value of the animals shipped, the contract of limited liability was one reasonable and just to make.
Well considered cases have held that matter not printed or written in the instrument to which the shipper affixes his signature, but referred to as appended to it, or to be found on the back of it, cannot be thus incorporated by such reference as an integral part of the contract. Ormsby v. U. P. Rly. Co., 4 Fed. 710; Railroad Co. v. Manufacturing Co., 16 Wall. 319. We may, however, for the purposes of the law as we find it, concede the correctness of the interpretation which plaintiff in error places upon the contract in question,— concede that the contract proper incorporates by reference thereto .the printed rules and regulations and that the two in combination make but a single instrument.
The common law imposes upon a common carrier the obligation to safely transport and deliver the goods of the public generally, and for a failure to do so compels it to respond in damages to the extent of the losses sustained. These rules of duty and liability are fixed in considerations of public good, and do not arise ex contractu. The policy of the law attaches the obligation and responsibility in question to the office or calling of the common carrier. The services of a carrier are of a necessary character, and are in constant demand by the general public. Therefore, the duty of performance upon the part of those who undertake the business of carrying is in the nature of a public office or trust. When the business of carrying started upon the growth which has reached its present magnitude, and began to be monopolized by large incorporated companies, contractual devices were resorted to ' for the purpose of mitigating the rigor with which the common law held the carriers to accountability for the full measure of losses sustained. Among the first of such devices were posted notices, that the carrier assumed a conditional or partial liability only, which the shipper was presumed to have seen and assented to. This was 'soon after superseded by stipulations to the same effect inserted in the contract of shipment, or otherwise specially brought to the shipper’s notice. Ray’s Negligence of Imposed Duties, ch. 2.
The question whether upon common law principles a common carrier may stipulate with the shipper for exemption from its common law liabilities is a vexatious and confusing subject of controversy in the courts. By some it is held that the public nature of the business of carrying imppses upon those who assume the conduct of such business, the obligations named, from which they can relieve themselves by no act of their own ; that such obligations are conditions annexed to the office, from which the carrier can be exempted only by legislative enactment. Other and perhaps a greater number of cases hold that, while the law will not permit the carrier to contract for immunity from the con - sequences of its own negligence, it will allow it to agree with the shipper upon the extent of its liability in case of loss by the acts of others or by its own non-negligent accidents ; and still others hold that, while it may not stipulate for total exemption from liability for its own negligence, it may, nevertheless, as in the case of the insurance feature of its obligation, agree upon the extent of its liability in case of loss or injury through its own negligence. However, it is held by all the courts which admit the right to stipulate for a limited liability that the terms of the contract must be proposed by the carrier in understandable language, be fair and reasonable between the parties, and be accepted by the shipper without the practice upon him of fraud or imposition. What the common law in question really is, has been a subject of contrary opinion in this State. Express Co. v. Foley, 46 Kan. 457-472, 26 Pac. 665. It is not necessary, however, for us to undertake to determine it. What has been said as to the divergent view’s of the courts has been by way of introduction to a statement of the legislative enactment of this State, which determines for us the rule of decision to be made. Section 13, ch. 124, Law’s 1883, (Gen. Stat. 1897, ch. 69, § 17,) declares it in a single and emphatic sentence :
“No railroad company shall be permitted, except as otherwise provided by regulation or order of the board [of Railroad Commissioners] to change or limit its common law liability as a common carrier.”
The common law liability of railroads as common carriers was to make the shipper whole by payment in full for property lost or damages to the extent of the injuries sustained. If, formerly, this liability could be limited by contract with the shipper, it can be done so now, as a matter of legal right, only by the permission or order of the Board of Railroad Commissioners. No such order or permission has been given ; at least the giving of it is not claimed.
The judgment of the court below is, therefore, affirmed. | [
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Allen, J.
The principal contentions on behalf of the plaintiff in error are, — First, that the damages resulting from the appropriation of the land for a right of way were personal assets which went to his administrator on the death of E. S. Menager, and that by his election to prosecute the action in his individual name the plaintiff has abandoned and lost whatever rights he might have asserted as administrator. Second, that by reason of the failure of the plaintiff to amend his petition within five years after the death of E. S. Menager so as to show that the plaintiff had succeeded to the rights of E. S. Menager the action became barred by the Statute of Limitations.
It seems to be conceded that under the facts of this case the damages resulting from the construction of the railroad became, and were at the death of E. S. Menager, personal assets which passed to the administrator. The action was revived in the name of both the heir and administrator. While there was-no necessity for joining the heir in an action to recover the damages, the heir was a necessary party to. the cross-petition of the defendant which prayed for a conveyance of the title to the land under the claim that the Railroad Company had bought and paid for it but that Menager had refused to convey. After the transfer of the legal title by Margaret Menager to the plaintiff it was proper to substitute him in her place, but this was not done within one year after the conveyance was executed. The revivor of the action of Margaret Menager in the name of Louis A. Menager as her heir was made, however, within one year after her death.
We are not advised as to the theory on which the court required the plaintiff to elect in which capacity he would prosecute the action. As ad- . . , -, . - , mimstrator he was entitled to recover the damages if any were recoverable. He was a proper and necessary party, as the grantee and heir of his mother, to the defendant’s cross-petition asking a conveyance of the title to the land. At the trial the defendant abandoned its claim on its cross-petition and conceded that the title was in- the plaintiff unless it had been lost by the taking possession of the land by the Railroad Company and the ■commencement of this action. It seems hardly accurate to say that the title to the land was divested merely by the occupancy and the institution of a suit for damages where no payment had been made by the Railroad Company. Be that as it may, the parties proceeded to try the question of damages. Each side called witnesses who were examined and cross-examined at great length. The plaintiff was the only individual who, in any event, would be entitled to receive the money due from the company for damages. Whether he was entitled to retain it all as grantee, or heir of his mother, or was bound to account for it as administrator of his brother’s estate did not seriously concern the defendant. A payment to him discharges the liability of the Railroad Company in any event.
As -this was a cause of action which accrued to E. S. Menager in his lifetime, under the authorities', as a strict matter of law, it would seem that the administrator must recover in his official capacity and that he cannot prosecute the action in his individual name. 8 Encyc. Plead. & Prac. 658. The reason given for this rule is that it is necessary for the. administrator to make proferí of his letters in order to show his title to the cause of action. In the case of Getty v. Larkin (ante, p. 548, 53 Pac. 755), it was held that an administratrix might recover in an action brought in her ■own name on notes taken by her in her individual name for property belonging to the estate. The distinction between the two classes of actions appears nice .and technical, yet perhaps it has something of substance and ought not to be disregarded. If the plaintiff after electing'to proceed in his individual capacity ■had offered in evidence his appointment as administrator an objection to the testimony doubtless would ■have been good. Instead of an offer of proof, however, we have an agreement at the conclusion of the trial that the plaintiff was then the sole administrator of the estate of E. S. Menager. The record fails to disclose the purpose of either party in making or procuring this admission. Its effect however is to show by the agreement of the parties that L. A. Menager, the plaintiff, is the person who is entitled to recover the damages claimed, but that he is entitled to that recovery in his official rather than in his individual capacity. We are admonished by the Code to disregard all technical errors not affecting the substantial rights of the parties. The question as to the amount of the recovery has been fully and fairly tried. The admissions made at the trial show that the plaintiff in his capacity as administrator is entitled to the judgment which was rendered. The only error committed by the court in the entry of judgment was in failing to describe him as administrator. It is claimed by the plaintiff that he is sole heir of Margaret Menager, who was sole' heir of E. -S. Menager, and that the damages would-in any event ultimately belong to him. It was shown at the trial that all of the debts of the estate of E. S. Menager had been paid. The plaintiff, if not his sole heir, was at least one of the heirs and interested in the prosecution of this suit. Under all these facts we have to decide whether the plaintiff, by erroneously electing to prosecute the action in his individual name, has forfeited all the rights of the estate which he represents as administrator or may still enforce the judgment which he recovered in his individual name, and was and is entitled to as administrator. Substantial justice clearly requires that the Railroad Company should pay for the property it has taken and the injury it has caused to the land not taken, and should pay it to the plaintiff as administrator of the estate of his deceased brother. The record before us contains every fact essential to be known in finally determin ing all questions relating to the subject-matter of the action. While we concede the general rule that a party can only recover in the capacity in which he sues, there are many cases in which a party may be concluded in one capacity though he sues or is sued in another. Railroad Co. v. Mills, 57 Kan. 687, 47 Pac. 834; Black on Judgments, § 536; Tate v. Shackelford, 24 Ala. 510, 60 Am. Dec. 488; Keniston v. Little, 30 N. H. 318, 64 Am. Dec. 297; Colton v. Onderdonk, 69 Cal. 155, 10 Pac. 395. The reason of the rule requiring an administrator who seeks to recover on a cause of action which accrued to his intestate in his lifetime, to sue as administrator being, as before stated, that it is necessary for him to allege and prove his authority to act as administrator, the purpose of such allegation and proof has been fulfilled in this case by the agreement of the parties, which shows his title at the time of the trial. The fact being agreed upon, no necessity appears for allegation and proof of it. The defendant admits that it could have raised no question on the right of the plaintiff to proceed as administrator. All' disputed questions having been fully and fairly tried the plaintiff’s recovery should be sustained, not in his individual right but in his capacity as administrator.
On the other proposition, that the plaintiff’s action became barred by the Statute of Limitations on his failure to amend his petition within five years after the death of E. S. Manager, the cases of City of Atchison v. Twine (9 Kan. 350), and C. B. U. P. Rld. Co. v. Andrews (34 Kan. 563, 9 Pac. 213), are strongly relied on by counsel for plaintiff in error to sustain their contention. These cases hold that , ,, n . . , an amendment of the petition showing x ° the plaintiff’s title as administrator is necessary in a case like this, but no question of the Statute of Limitations was then under consideration. In this case the cause of action which was prosecuted by E. S. Menager, in his lifetime, was by proper proceedings duly revived in favor of the administrator and the heir at law. It is a rule of universal application, so far as we are informed, that Statutes of Limitation never run against a cause of action while an action for the enforcement of it is pending. Can it be said that after the substitution of the administrator and heir at law in the place of E. S. Menager, by revivor in their names, no afetion was pending ; that although revived, the action was still dead? We think not. After the revivor the action was pending with the administrator and heir substituted in the place of E. S. Menager. But it is said that an amendment to the petition alleging the transfer of interest incident to the death of Menager and the appointment of his administrator was essential to show a cause of action in favor of the administrator; that this was in effect an amendment setting up a substantially new cause of action, and under prior decisions of this court the running of the statute is to be computed up to the time of filing the amended pleading. This, though plausible, is not sound. The cause of action prosecuted by the plaintiff was the identical cause of action alleged by E. S. Menager when he instituted the suit. At all stages of the case, the claim of the plaintiff was simply one for the recovery of damages for the appropriation of the land taken by the Railroad Company. This identical cause of action has been pending and alive at all times except during the brief interval between the death of E. S. Menager and the revivor óf the cause in the name of his administrator. The amendment, while essential under the cases cited, does not introduce a new cause of action, and therefore the bar of the statute did not intervene.
Some questions are also raised as to the admission and rejection of evidence, and also with reference to the instructions and the measure of damages, but we find nothing in any of them of merit or worthy of extended comment.
The judgment of the District Court will be modified so as to show that the recovery by the plaintiff is in his capacity as administrator, and so modified it will be affirmed. | [
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Doster, C. J.
This was an action for damages for bodily injuries negligently inflicted by the plaintiff in error, upon the line of the Fort Scott, Southeastern & Memphis Railway, many years ago. The facts were presented to the court below in an agreed statement, and in other documentary forms. Summarized, they are that the Fort Scott, Southeastern & Memphis Railway Company and the Missouri River, Fort Scott & Gulf Railroad Company were Kansas corporations, and the first named company leased its line to the one last named, under the following instrument:
“ This Agreement, Made this ninth day of December, a. d. 1874, by and between the Fort Scott, Southeastern & Memphis Railway Company, party of the first part, and the Missouri River, Fort Scott & Gulf Railroad Company, party of the second part, both being corporations existing under the laws of the State of Kansas :
“•Witnesseth, Whereas the said party of the first part has constructed, and is the owner of a railroad track commencing at a point on the main line of the railroad now owned and operated by the said party of the second part about half way between the town of Godfrey and the city of Fort Scott in the county of Bourbon and the state of Kansas, and extending from thence in a general southeasterly direction about six and one-half miles through the vicinity of the coal banks in the said county of Bourbon ; and -whereas said party of the first part has no rolling stock and is desirous that the said party of the second part shall furnish the necessary rolling stock and operate said road.
“Now therefore, in consideration of the covenants and agreements hereinafter contained on the part of said party of the second part to be performed, said party of the first part hereby covenants and agrees that it will maintain in good order its track and give to said party of the second part for the term of ten years from and after the date of this contract, unless said contract shall be sooner terminated, the exclusive right .to run and operate its trains of cars over and upon said railroad track of the said party of the first part free of charge, but for the purpose only of carrying the coal supplied to the said party of the first part for shipment to any point on the line or beyond the northern terminus of the railroad of the said party of the second part.
“And the said party of the second part further agrees that it will not build, cause to be built, or in any manner whatever encourage the building of any other railroad track within the distance of seven miles of the point where the track of the said party of the first part commences.
“And the said party of the second part agrees further that it will with its own locomotive power and cars transport, without unnecessary delay, for a period of ten years, unless the contract shall be sooner termi nated, all coal that may be supplied to the said party of the first part for shipment over its line of railroad from any loading station on the line thereof to Kansas City in the state of Missouri, at the rate of sixteen dollars ($16.00) per car-load of twelve tons eachj and for rates as low to any point on the line north of Fort Scott or at and beyond the northern terminus of the railroad of the said party of the second part as shall be given or allowed to any other person or corporation without the consent of the said party of the first part (excepting, however, two contracts now in force), from the city of Fort Scott or any other station south of Fort Scott to any point north on the line or beyond the northern terminus of its railroad.
“And it is further stipulated and agreed, that if the said party of the first part shall hereafter extend its railroad track to the state line between Kansas and Missouri, or to a greater distance than six and one-half miles from the point where the same shall intersect the railroad of the said party of the second part, then and in that case the said party of the second part will operate the same and shall be entitled to receive, and the said party of the first part agrees to pay, the sum of one dollar per car-load in addition to the price herein agreed to be paid, for all coal transported by the said party of the second part for each and every five miles, and every part thereof, the same is transported over the line of road so extended.
“And it is further agreed by and between the parties hereto, that for the transportation of all freight other than coal, and all passengers, from the City of Fort Scott to the terminus of the six miles of road now built by said party of the first part, and from such terminus to the City of Fort Scott, the said party of the second part shall collect and receive the entire freight moneys and fares, fifty per cent, of which said party of the first part shall be entitled to receive and said party of the second part hereby agrees to pay.
‘ ‘ And it is further expressly agreed that in the event that business along the line of said road of the party of the first part, other than the carrying of coal, should be sufficient to induce the party of the first part to desire to operate its said road, then the said party of the first part shall have the right to cancel and annul this contract, first giving sixty days’ written notice of its intention so to do and paying to the said party of the second part all moneys due it for freight advances or otherwise.
“ It is also further agreed that in the event of the annulling of this contract and operation of the said road by the said party of the first part, it shall have a right of way for its trains over the track of the said party of the second part between the point of intersection of the two roads and the City of Fort Scott upon such terms as may be reasonable and usual and as may be agreed upon between the parties ; and in case the parties are unable to agree upon such terms then each may choose a referee, who in the event of disagreement may select a third to fix such terms, and their decision shall be binding upon both the parties hereto.
“In witness whereof, the said parties have caused these presents to be subscribed, the party of the first part by its. president and the party of the second part by its general manager, and have caused their respective corporate seals to be hereunto affixed on the day and year first above written.
Fort Scott, Southeastern & Memphis Railway Company.
By its President, B. P. McDonald.
Missouri River, Fort Scott & Gulp Railroad Company.
By Geo. H. Nettleton, General Manager.”
The injuries to the plaintiff in error occurred through the negligence of the employees of the above-named lessee company in the operation of the leased line. Subsequently the Fort Scott, Southeastern & Memphis Railway Company was consolidated with other companies into the Kansas City, Fort Scott & Memphis Railroad Company, the defendant in error. What became of the Missouri River, Fort Scott & Gulf Railroad Company is immaterial. Under the statutes of this State the new or consolidated company became liable for the obligations of the old or constituent companies. Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 759, 34 Pac. 805. For reasons not necessary to explain, the liabil ity of the Fort Scott, Southeastern & Memphis Railway Company to the plaintiff in error was not barred by the Statute of Limitations at the time of the consolidation ; nor is the liability of the consolidated company barred, if it ever existed. Did it ever exist? The determination of this question depends upon the interpretation of the lease above quoted, and the effect to be given the statute which authorized it to be. made. If, under the statute and the lease, the injury inflicted upon the plaintiff in error -was wholly the act of the lessee company, it alone was liable. If on the other hand the injury was wholly or in part the act of the lessor company, it was' liable, and its liability has descended upon the defendant in error. The court below held it to ha^ve been the act of the lessee company, and in this view we concur.
The lease in question was made under the authority of chapter 92, Laws of 1870, section 2 of which reads :
“Any railroad company in this State existing under general or special laws may lease its road to any other railroad company organized under the laws of this State, or to any railroad company duly organized and existing under the laws of an adjoining state whose line of railroad shall so connect with the leased road as to form a continuous line.”
That a railroad company may not lease its line and turn the operation of its road over to another railroad company without legislative authority for so doing may be conceded. It takes to itself a public franchise, and, unless authorized to do so may not decline to perform.the duties it has voluntarily assumed. That it may by legislative permission lease its property and put another in the performance of its duties may likewise be conceded, and when in pursuance to the authority conferred an instrument of lease is executed such instrument must be construed, we think, as like instruments between other corporations or between private individuals. If tlie authority to lease is general the lease may be general in its terms, and without conditions except such as the parties choose to insert. If the authority to lease be general the lessor may put the lessee wholly and fully in the possession of its road bed and other property for the purpose of exclusive operation by the latter. In the case of the lease in question this was done. Upon the lessee was conferred “the exclusive right to run and operate its trains of cars over and qpon the track of the party of the first part.” Nowhere in the instrument is there any language. limiting this full and complete cession of authority, but there is elsewhere in it language which by strong implication confirms and strengthens the general grant. In pursuance to this instrument the lessor company put the lessee company in the exclusive possession and operation of its road bed, and in the exclusive discharge of its franchise as a public carrier. While thus in possession and operation of the leased road, and in the discharge of the lessor’s franchise, the lessee committed the tort in question through the agency of its own train of cars negligently operated by its own employees. Upon what just legal principle, therefore, can the lessor be held liable for the wrong thus wholly committed by another and which it was powerless to prevent ? At common law the lessor is not liable for the tenant’s negligence in the use of the leased premises, resulting in injuries to another, unless a right of control in such respect is reserved. Wood’s Landlord and Tenant, § 539.
If, therefore, the question were determinable upon principles pertaining to lessors and lessees as individuals, the plaintiff in error could have no cause of complaint. It is asserted, however, that the lessor company, having taken upon itself the obligation to operate a railroad, could not, even under the authority to lease, so far abdicate its franchise as to escape responsibility for injuries to third persons, occurring incident to the performance of the duty, by its substituted agency, the lessee company; that in order to do so a legislative exemption must be expressed, and that the mere authority to lease does not imply the necessary exemption. The plaintiff in error is mistaken. The exemption need not.be expressed; it may be implied ; and a general authority to lease is sufficient to raise the implication. To hold otherwise it would have to be that the lessee company was not a lessee, but was a mere agent of the lessor; and indeed counsel for plaintiff in error would have it thought that such was the case. The statute, however, only authorizes the making of leases, not contracts of agency. The instruments authorized by it are designated as “ leases,” and, when an agreement between two railroad companies is expressed in terms fit and apt to create the relation of lessor and lessee, it will be held to be what the statute authorizes —a lease. When a lease is made, what reason can exist for not attaching to it the ordinary common-law consequences of such contracts — liability of the lessee to third persons for the negligent use of the leased premises, and non-liability of the lessor when no right of control over the lessee has been reserved? The demands of public policy are satisfied and the rights of third persons secured by the imposition upon the lessee of all liability incident to the exercise of the franchise by it, and the demands of what the common law in such cases esteems to be just are likewise secured by exempting the lessor from liability. With the exception of the case of Logan v. Railroad Co. (118 N. C. 940), and Harmon v. Railroad Co. (28 S. C. 401), all the authorities are opposed to the contention of plaintiff in error.
The case of Heron v. St. P. M. & M. Rld. Co. (68 Minn. 542), is so instructive upon this question that we quote from it at length :
“1. We shall consider first the liability of the St. Paul, Minneapolis & Manitoba Railway Company. There is a conflict of authorities upon the question whether a company which leases its railroad to another company under authority of law is liable for the negligence of the lessee in operating the road under the lease. Some courts hold that the lessor is liable unless the statute which grants the right to lease expressly exempts the lessor from liability; that there can never be an exoneration from liability by implication ; while others hold that the lessor is exonerated from liability for the negligence of the lessee in operating the road where the lease is authorized, although the statute authorizing it does not contain any express provision relieving it from liability. In our opinion, upon both principle and authority, the latter is the better doctrine. It is unneccessary to review the authorities on the subject, as most of them will be found collated in the text-books. See 2 Elliott, R. R., § 467, et seq. The reasons in support of this position are well and forcibty stated by Judge Elliott, as follows : ‘ It must be assumed that in granting the authority to execute a lease the Legislature had in mind former statutes as well as the established rules of the common law. When power to execute a lease is conferred upon a corporation, the Legislature must, in the absence of countervailing language, be deemed to intend to authorize the execution of such an' instrument as the established law regards as a lease. The law enters as a silent factor into every contract, and hence of every lease it is an important element. The legal effect of a lease is to transfer for a prescribed period of time the possession and control of the property to the lessee. In authorizing the execution of a lease the Legislature grants the right to execute and carry into effect such an instrument as divests the lessor of possession and control, and places it in the lessee to the exclusion of the lessor. The possession of the one party is excluded and that of the other is made com píete by legislative sanction. ... It cannot be doubted that a statute conferring general authority to sell means a complete and effective sale, and upon the same principle it must be concluded that the power to lease, unless qualified and limited by statiite, is a power to make a complete and effective lease. A complete and effective lease certainly vests the right of possession, control and management in the lessee, since no other effect can be assigned such a lease without a direct and palpable violation of long and well established principles of law. . . . In granting authority to lease, the Legislature empowers the lessor company to transfer the duty of operating the road to the lessee, and in doing what the Legislature authorizes no rule of public policy is violated. . . . The courts which assert the theory mentioned [that there must be an express exemption from liability in order to exonerate the lessor] tacitly assume that in granting authority to lease the Legislature granted something less than an authority to lease. We believe that the only theory that can be defended on principle is that in granting authority to execute a lease the Legislature conferred authority to execute an effective instrument with all the qualities and incidents with which the law invests a lease. If this be true, then the lease does transfer possession and control from the one party to the other for the term of the lease, and the rights and obligations of the parties are such, and such only, as the law annexes to the relation of lessor and lessee.’ 2 Elliott, R. R., § 469. The learned author is speaking, as we understand him, solely with reference to negligence of the lessee in the operation of the road, and not attributable to a breach of any public duty of the lessor company; and we shall only add to what he has said that as to such acts, whether of omission or commission, there is no reason of public policy why the rights and obligations of the lessor and lessee should be held to be different from those which the law annexes to any other lease. We therefore hold that upon the facts alleged the St. Paul, Minneapolis & Manitoba Railway Company is not liable, and its demurrer to the complaint should have been sustained.”
The Court further says, pp. 551-2 :
“ We start with the proposition that a railroad company is liable for the negligence of its lessees or licensees in the operation of its road, unless it is relieved therefrom by legislative exemption, express or implied. In case of a lease made'with legislative authority, which gives the lessee the exclusive control and possession of the road, we have just held that such exemption is necessarily implied. The fact that the lease transfers to the lessee this control and possession, thus putting it out of the power of the lessor to interfere with or regulate the operation of the road, is an influential, if not the controlling consideration for holding that this exemption is implied.”
Wood’s Railway Law, section 490, sums up the authorities thus :
"But where the statute authorizes the lease; the lessee assumes, during the existence of the lease, all the duties and obligations of the lessor, and from the time that it enters into the possession of the road, becomes solely liable for all injuries resulting from its management unless it is operating the road in the name of the lessor.”
Hutchinson on Carriers (2d ed., § 515b) says :
"An authorized lease, however, not otherwise providing, will absolve the lessor from the torts of the lessee resulting from the negligent operation and handling of its trains and the general management of the leased road over which the lessee has no control ”
2 Elliott on Railroads (§ 468) says :
"As said in the preceding section, some of the cases make a distinction between negligence in the operation of the road and negligence in its construction, and adjudge that the lessor company is not liable for the negligence of the lessee in operating the road. The text turiters generally favor the doctrine that for negligence in operating the road the lessor is not liable.”
And in section 469: "Our opinion is that where the lease is executed under the provisions of a statute, in accordance with its requirements, is made to a company having authority to accept it, and is made in good faith, and not for the purpose of transferring duties and obligations to an irresponsible party, the lessor company is not liable for injuries caused by the negligence of the lessee and not attributable to a breach of any public duty of the company that executed the lease.”
Many cases cited by counsel for plaintiff in error are upon qxiestions of liability of lessor companies for the negligent construction of the road, or the negligent maintenance of it when the duty of maintenance has not been assumed by the lessee. Of this class is the decision of this court in St. L. W. & W. Rld. Co. v. Curl (28 Kan. 622). In that case the second division of the syllabus reads thus :
“ In case of a lease of a railway track, a distinction exists as to the liability of the lessor and lessee company between these cases in which the liability arises from the omission of some duty in the construction of the road, and those which arise from negligence or the omission of some duty in the handling of trains and the management of the road.”
Justice Brewer delivered the opinion, and said (pp. 623-é) as follows :
“ Defendant contends that where the statute authorizes the lease by one railway company to another of its track, the lessor company is not responsible for injuries caused by the torts of the lessee company, and in support of this doctrine cites some authorities. To a certain extent this proposition is true : if the injury results from negligence in the handling of trains, or in the omission of any statiotory duty connected with the management of the road, matters in respect to tuhich the lessor company could, in the nature of things, have no control, then the lessee company will alone be responsible; but when the injury results from the omission of some duty, which the lessor itself owes to the public in the first instance — something connected with the building of the road — then we think the company assuming the franchise cannot diyest itself of responsibility by leasing its track to some other company.”
We are entirely satisfied that the judgment of the court below was right, and it is thex’efore affirmed. | [
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Dostek, C. J.
The plaintiffs in error were indebted to the defendant in error the Norbhrup Banking Company, upon promisory notes, one for $800, and one for $8400. Suit was brought, upon these notes, and the amounts of certain insurance policies, due to the plaintiff in error Anna Potter, were garnished in the hands of the insurance companies. The plaintiffs in error opposed the application of the insurance money to the payment of the notes, upon the ground that it was due for a loss sustained by the burning of a building owned and occupied by them as a homestead, and therefore exempt under the Constitution. To this the defendant in error, the Northrup Banking Company, replied that the plaintiffs in error had waived their homestead exemption, by executing an instrument assigning the money due from the insurance companies and ordering payment of-the amount due from them. The plaintiffs in error, after denying the legal effect of the order and instrument of assignment, rejoined that such instrument had been rescinded by them, and that the Northrup Banking Company had waived its rights thereunder.
The material facts of the case were these : The plaintiffs in error were indebted to the Northrup Banking Company to the amount of the two notes mentioned, with interest thereon. The note for eight hundred dollars was secured by mortgage upon real estate other than the homestead in question. The note for $8400 was unsecured. The homestead building was insured, in several companies, to the amount of $27,000. The Jarvis-Conklin Mortgage Trust Company, of Kansas City, Mo., held a mortgage upon the homestead property to the amount of thirteen thousand dollars. The homestead building was destroyed by fire ; and a few days thereafter the plaintiffs in error aud the Northrup Banking Company agreed upon a compromise, scaling down the indebtedness due upon the two notes to the amount of $7250. The insurance money was to be paid into the hands of the Jarvis-Conklin Mortgage Trust Company, the homestead mortgagee ; and it was expected by the plaintiffs in error and the Northrup Banking Company that this payment would be speedily made. In consideration of the indebtedness due from the plaintiffs in error, and of its reduction to the amount stated, they gave the Northrup Banking Company an order upon the Jarvis-Conklin Mortgage Trust Company, in the following words :
"$7250. Kansas City, Kan., August 31, 1892.
"Please pay to the order of the Northrup Banking Company the sum of seven thousand two hundred and fifty dollars, out of any moneys received by you from the Insurance Companies after your claim is satisfied, as I have transferred my interest to them to the above amount in satisfaction of their claims against me. The above mentioned insurance money growing from loss under policies on buildings formerly located on corner of State Avenue and Eighth Street in Kansas City, Kansas, said buildings having been lost by fire on 29th of August, 1892. Anna Potter.
Eli Potter.”
This was presented by the parties to it to the JarvisConklin Mortgage Trust Company, which refused to accept it, but offered to take it and the notes for $800 and $8400, and the mortgage securing the first named amount, and hold them “in escrow,” and, after satisfying its mortgage out of the insurance money, to pay the agreed amount of $7250 to the Northrup Banking Company. This having been agreed to, the papers in question were inclosed in an envelope, and a memorandum of the agreement indorsed thereon, in the following words :
“August 31, 1892. Two notes, one of $8400, one of $800, mortgage on lots 30 and 31, Block 41, Wyandotte, given by Eli Potter and Anna Potter and put in escrow as per order enclosed of $7250 to be paid to the Northrup Banking Company by above and the Northrup Banking Company out of the proceeds after J. C. M. T. Co. claim be paid, and notes to be cancelled and delivered to Potters.”
There is some doubt as to whether Mrs. Potter understood and assented to this modified arrangement, but we do not regard her lack of knowledge as material to the question involved. A few weeks thereafter, Eli Potter procured from the Northrup Banking Company'an order upon the Jarvis-Conklin Mortgage Trust Company for the delivery to him of the mortgage securing the note of $800. It was delivered as ordered, and satisfaction entered on the mortgage records by the cashier of the Banking Com pany. No offer was made by the Potters to return this mortgage, or to assent to the cancellation of the entry of satisfaction. A few weeks thereafter, Anna Potter notified the Jarvis-Conklin Mortgage Trust Company of her rescission of the instrument of assignment of the insurance money, and of her refusal to adhere to the terms of the “escrow” agreement. Thereupon the papers were delivered back to the Northrup Banking Company, and suit was brought upon the notes and garnishment of the insurance companies made, as before stated. A trial was had, findings made, and judgment rendered for the Northrup Banking Company, from-which the Potters prosecute error to this court.
The contentions of the plaintiffs in error have been sufficiently stated. They were set forth in oral argument and in printed' brief with an elaboration of detail presenting not only principal but subsidiary and alternative propositions covering every possible phase of the case. It would extend the limits of an opinion far beyond its proper length were we to notice all the points made by plaintiffs in error and apply what is herein said to the refutation of their argument. They are all in our judgment unsound.
The order upon the Jarvis-Conklin Mortgage Trust Company was not an instrument which of necessity required acceptance in writing. It was accepted by oral agreement, and a memorandum of the acceptance and agreement indorsed upon the envelope containing the papers. Such part of the agreement and the memorandum of it as the parties chose at the time to have performed, was complied with by the JarvisConklin Mortgage Trust Company by the delivery to the Potters of the mortgage for eight hundred dollars ; and as to any question whether Anna Potter knew of this partial performance or whether she assented to it, it is sufficient to say that she has accepted its benefits, or at least made no offer to restore what she received thereunder ; but whether she did or not we regard as immaterial.
The order upon the Jarvis-Conklin Mortgage Trust Company was not an agreement of homestead waiver to take effect in the future. It was a present transfer of a homestead interest. Its language is “I have transferred my interest to them (the Northrup Banking Company) to the above amount in satisfaction of their claims against me.” It is true that this instrument is not in 4116 form of a conveyance or other writing by assignor to assignee. It is in the form of a letter of notification addressed to a third person; but this is sufficient evidence of an agreement in relation to real estate to except the case out of the Statute of Frauds and to validate it as a contract between the parties. Miller v. Railroad Co., 58 Kan. 189, 48 Pac. 853. It was an instrument upon which an action for specific performance could have been maintained.
It is said, however, that the Northrup Banking Company abandoned its claim upon the insurance money transferred to it under this order, by bringing suit upon the original indebtedness, and also by instituting garnishment proceedings against the fund transferred to it as though such fund belonged to the Potters and not to it. There is some force to this as a matter of evidence bearing upon the question of intent to waive rights, but as against the continued effort of the company to hold to the insurance money transferred to it, for the purpose of its application upon the indebtedness in question,it cannotavail. While itis true that the insurance money had already been transferred to it, yet the insurance companies were not parties to the transfer, and it was not, therefore, binding upon them. A convenient way to bring the fund under the jurisdiction of the court was the garnishment of the defendant’s debtors. This fund and the companies owing it having been brought into court, it became subject to the equitable jurisdiction of the court for the purpose of applying the money in fulfilment of the agreement concerning it made between the interested parties. That he chose to accomplish this by the remedy of garnishment, which proceeds upon the theory of a fund belonging to the debtor, does not estop the creditor from asserting an equitable ownership of the fund garnished. It must be rememberd that the' agreement of transfer of the money due from the insurance companies was executory. The legal title to the fund •was in the debtors, and it would seem that garnishment was not an inappropriate remedy to divest the debtors’ legal title to it, for to the extent of the legal title they were still the owners of the money.
It is also claimed that the Northrup Banking Company repudiated the agreement of compromise in pursuance of which the instrument of transfer of the insurance money was given, by suing upon the original promissory notes of $800 and $8400. It did not do so. It is true the original petition claimed judgment upon the promissory notes, but an amended petition was subsequently filed, setting forth the transaction of compromise and claiming only the reduced amount of $7250; for which amount, together with interest, judgment was rendered.
A further contention of the plaintiffs in error is that the funds garnished cannot be held to apply on the judgment against them, because the service of garnishee summons was defective. The statute provides two methods of service ; one by summons issued to the sheriff and to be served by him upon “the chief officer of the company's agency”, the other, by summons to the Superintendent of Insurance ; in which latter case the answer must be by a certain day not less than forty days from the date of the summons. General Statutes 1897, ch. 74, § 24. In this case both methods of service were resorted to. In the case of the summons directed to the Superintendent of Insurance, the answer was required within twenty days from its date. It may be doubted whether the statute providing for service upon the Superintendent of Insurance applies to the service of garnishment summons. If it does not, the service made upon him was nugatory. If it does, it was- probably defective, as claimed by the plaintiffs in error. However, a determination of neither of these questions is necessary. The service made by the sheriff was valid. The evidence as to the character of the agent upon whom the service was made brings the case within Insurance Co. v. National Bank, 58 Kan. 86, 48 Pac. 592; and the fact, which also appeared in evidence, that the agent upon whom service was made was not “the chief officer of such agency,” because he was the only representative of the company, can make no difference. He was in the performance of all the duties of a chief officer within the decision of the case last cited.
It appears that after service upon the garnishees, they and the plaintiffs entered into an agreement indefinitely extending the time for the filing of their answers, and that subsequently the court made an order extending the time for the filing of their answers. The plaintiff's in error contend that this agreement and order ousted the court of jurisdiction over the garnishees, and that thereafter no answer could have been required of them, or could be legally received from them. The basis of this contention is the legal rule that garnishment proceedings are purely statutory, and must be conducted in substantial conformity to the statute, else the defendant debtor may interpose objections in bar of the creditor’s right to judgment upon the garnishee’s answer. The legal rule as contended for doubtless exists ; but it applies no farther than the proceedings by which jurisdiction' is obtained over the garnishee. All the principal cases cited by the plaintiffs i-n error are cases of .defects 'in the initiation of jurisdictional proceedings. After jurisdiction has once been obtained, it can only be lost by departures from the statutory methods so substantial in their nature as to amount to a release of the person or the subject-matter of controversy. This was not done by stipulating for or ordering a delay in the filing of the answers in garnishment.
Other claims of error are made, but they were argued less strenuously than those we have noticed. They are lacking in merit, however, and the judgment of,.the court below will be affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
Upon the trial of this case, the plaintiff in error offered in evidence the papers in case No. 26, of Reese v. Turner & Otis, then pending in said court; ■ and thereupon said Reese admitted that said actions Nos. 26 and 86 wei’e both between the same parties plaintiff and defendant, and for the identical property, and that the action commenced January 15th, 1876, was then still undetermined; that at the time of the commencement of said action of June 9th, 1876, said Turner & Otis were in the possession of said property, and that said actions were both brought and are still pending in the same court; and thereafter the court proceeded to hear and determine whether the said Reese was •entitled to the possession of the corn under the prior chattel mortgage executed to him by said B. Grubb, on November 18th, 1875, and upon the evidence, decided adversely to said plaintiffs in error, and in favor of said defendant in error. All of this was erroneous. If we consider that action No. 26 was another action for the same cause between the same parties, in the same court, then, being the prior action and still pending, the pendency of such action was a complete bar to the prosecution of this suit. This being the subsequent suit (having been commenced on June 9th, 1876, and the former action having been commenced on January 9th, 1876), it ought to have been abated. If it be contended, however, that this action was for trial the same as if the sheriff had continued the only defendant, and that the substitution of Turner & Otis in the place of the officer did not vary or change the-issues or the rights of said Reese, still, under his admissions,, he was not entitled to recover. At the time of the commencement of said action, Turner & Otis, and not the sheriff, were in the possession of the property, and had control of it. On January 17th, 1876, Turner & Otis had executed a redelivery bond to said Reese in said action No. 26. Under our statutes,, the title to the property in dispute, after the acceptance of such undertaking, during the litigation, remained the same as it was before in every respect, except that Otis and those-holding under him obtained the right of possession, with such a special right of property, that they could have maintained replevin for the property against anyone who should disturb-their possession. (Kayser v. Bauer, 5 Kas. 202.)
The admission of the defendant in error of the possession of the property by plaintiffs in error at the commencement of the second suit, is conclusive against him. We must consider this part of the case in that light. As Turner & Otis-continued to retain the property, and as their possession and detention were not wrongful or unlawful against the defendant in error, the latter had no cause of action against any one-in this case. In the absence of any wrongful detention on the part of a defendant against a plaintiff, no cause of action-exists.
The judgment of the district court must be reversed.
All the Justices concurring. | [
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