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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the trial court’s judgment holding that an initial common carrier was not liable to the shipper for moneys collected from the consignees on five C. O. D. shipments which moneys were converted by a delivering common carrier.
Briefly summarized, the stipulated facts were that appellant, Merritt M. Young, had his place of business in Wichita and appellee was a common carrier incorporated under the laws of the state of Kansas. During November and December, 1953, appellant delivered to appellee at its Wichita freight station five C. O. D. intrastate shipments totaling $843.05 in value. Four of the shipments were addressed to a consignee at LaCrosse and the fifth to a consignee at Utica. Appellee’s authority under its published tariffs filed with the state corporation commission (hereinafter called the commission) did not extend to LaCrosse and Utica but went only as near thereto as Great Bend. For delivery to the consignees the shipments were delivered to Kenneth W. Kerbs, Sr., doing business as the Midwest Truck Line, as interlining and delivering carrier. Kenneth W. Kerbs, Sr., delivered the shipments, collected the C. O. D. moneys and converted them to his own use. He subsequently was discharged in bankruptcy on June 18, 1954. . On February 10, 1954, appellant made demand on appellee for the total of the C. O. D. amounts, which demand was refused. Neither appellant nor appellee ever received any money from the shipments.
The stipulation further provided that at all times material rule 82-4-49 of the commission was duly on file in the office of the revisor of statutes as required by article 4, chapter 77, laws 1949, and was in full force and effect.
In his petition appellant substantially alleged, in addition to a more elaborate statement of part of the facts gleaned from the above stipulation, that appellee selected an agent (Midwest Truck Lines, Kenneth W. Kerbs, Sr.) to deliver to and collect from the consignees which, in connection with the conversion of the proceeds, amounted to a misdelivery and conversion of the property by appellee, or its agent, in violation of the terms and conditions of the bills of lading, which made appellee liable for the value of the property after demand by appellant and refusal by appellee. He cited G. S. 1949, 66-304; 66-305; 66-306; 66-307 as authority for this allegation and further claimed attorney fees under G. S. 1949, 66-305.
In its answer appellee alleged supplementally to part of the stipulated facts and, in substance, alleged that the interlining of the named carriers for delivery of the five shipments under the bills of lading was authorized by tariffs on file with the commission; that Midwest Truck Lines (Kenneth W. Kerbs, Sr.) was not the agent of appellee and that the duty of collecting and remitting the C. O. D. charges was that of the delivering and not the originating carrier. Appellee denied that the C. O. D. stamped on the bills of lading became a part and parcel of the shipping contract. It was further alleged by appellee that collecting on delivery is a service authorized by the commission and under our statutes that service is not a part or parcel of a shipping contract or bill of lading.
Appellant sued appellee for the C. O. D. moneys. The case was submitted on the above stipulation of facts and the pleadings heretofore summarized. The trial court held that appellee was not liable and this appeal followed.
Statutes and parts thereof pertinent to this matter are as follows:
G. S. 1949, 66-1,112 grants the commission the power and duty to regulate every public motor carrier of property in the state in all matters affecting the relationship between such carriers and the shipping public.
G. S. 1949, 66-304 provides that any common carrier receiving property in intrastate shipment shall issue a receipt or bill of lading and such initial common carrier or any other common carrier to which said property may be delivered or over whose line such property may pass shall be liable to the owner for any loss, damage or injury caused by any one of said carriers, and no contract, rule, or regulation shall exempt any of such carriers from the liability thereby imposed.
G. S. 1949, 77-109 provides that the common-law rule that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute but all such statutes shall be liberally construed to promote their object.
G. S. 1949, 77-405 provides the definition of “regulation” to mean any rule or regulation made by any state agency. G. S. 1949, 77-406 in turn provides for filing of such regulation and, finally, G. S. 1949, 77-413 provides that any regulation not filed as required shall be of no force and effect.
We come next to the rule mentioned in the stipulation which had been filed by the commission as required by the above statutes and was in effect at all times material herein. It reads, in part, as follows:
“Rule 82-4-49
“C. O. D. SHIPMENTS
“In the case of C. O. D. shipments handled by common motor carriers, the full amount due the consignor, as shown by bills of lading or papers attached thereto, shall be collected at the time the shipment is delivered . . . Remittance of the amount so collected shall be made by the delivering carrier direct to the consignor as soon as good and efficient handling and bookkeeping methods will permit . . .
“In cases where more than one carrier is involved in the handling of C. O. D. shipments, the delivering carrier is responsible for the collection from the consignee and remitting to the consignor of all amounts due, and so notifying other carriers involved, if any.”
The first and vital question involved in this appeal is whether the trial court erred in holding, as a matter of law, that under the aforesaid pleadings and stipulation of facts the initial common carrier was not liable to the shipper, or consignor.
As a general rule, the common practice of shipping goods collect on delivery ( C. O. D.) to a buyer instructs the carrier not to deliver the goods until the price has been collected. Thus there is created a special service outside the scope of the common carrier’s public service duty so that liability for such service rests upon a contractual basis. A strictly correct minority view treats the carrier as having extended its public service undertaking to that type of traffic when, absent a special contract, it customarily accepts such shipments. (4 Williston on Contracts, rev. ed., § 1107A, p. 3136-3138.)
In our case the bills of lading were issued by appellee and the goods were accepted by it to be transported as a C. O. D. shipment. Appellee was therefore bound to collect the amount due and return the proceeds to the shipper. Delivery of goods without receiving payment, or if remittance is held up so that the consignee may garnish such proceeds, makes the carrier liable to the consignor therefor. (13 C. J. S., Carriers, § 186 (a) (b).)
Our statutes, previously stated in substance, use plain and unambiguous language and are appropriate for their obvious purpose. We are not warranted in looking beyond them in search of some other legislative purpose. (Alter v. Johnson, 127 Kan. 443, 273 Pac. 474.) There can be no doubt that G. S. 1949, 66-304 makes all interlining carriers liable for any loss to an owner of property shipped after it has been delivered to and accepted by the initial carrier for such transportation as is involved in the case at bar. ;
Appellee makes quite a point of the rule of the commission and particularly the last paragraph thereof and relies heavily thereon for its contention that only the delivering carrier is liable in this cáse for the.C. Ó. D. moneys collected. This is questionable reasoning. because .it is axiomatic that the initial and receiving carrier is the one who makes the contract with the shipper that the shipment will not be delivered until the C. O. D. money is collected. Here we may' pause to say that we are not unmindful of exceptions to this rule but none of those is present here. Continuing, we are aware that a carrier does not have to accept C. O. D. shipments. This general rule was first applicable to express companies, then to railroads, and now to automobile or motor common carriers within the confines of the facts of our present case. While under the general rule there may be two contracts involved, in this case both parties must, and do admit, that the commission has seen fit to make our rule otherwise. It likewise must be conceded that such rules are made for the benefit of the shipping public and that the carriers make an extra rate charge for such service. Therefore, it is inescapable that such contracts must be considered as part of the shipping contract. While there are some analogous situations which might be set out, we do not feel it necessary to analyze and discuss them here since they are not applicable to the facts in this record.
Proceeding further, the rulings of the commission have the above result because the commission’s rulings, the same as the appropriate statutes, must be liberally construed in favor of the shipping public. To this effect is the opinion in Birggs v. Burk, 172 Kan. 375, 239 P. 2d 981, wherein the Honorable W. W. Harvey, former Chief Justice, made an exhaustive study of statutes and rules of the state corporation commission thereunder and while the subject was quite different from the case at bar, the rulings in that opinion are generally applicable to motor common carriers.
Turning again to our case, the final paragraph of the commission’s rule merely expedites the payment to the shipper of the C. O. D. moneys. Were this not so, the rule would be a limitation and contravention of the statute and would not be within the power of the commission to make. It is only natural that the delivering carrier is responsible for the collection of the C. O. D. moneys since it is the only one of the interlining carriers that contacts the consignee.
The last words in the rule, which read, . . and so notifying other carriers involved, if any,” are clear and unambiguous and were used by the commission to avoid any such result as is claimed by appellee here to the effect that this rule makes only the delivering carrier liable. In connection with, and as a basis for, the above reasoning, reference is made to some authorities from jurisdictions other than our own; Anthony v. Express Co., 188 N. C. 407, 124 S. E. 753, 36 A. L. R. 460, anno. 464; Mogul, Inc., v. Lavine, Inc., 247 N. Y. 20, 159 N. E. 708, 57 A. L. R. 934, anno. 937; Hough-Wylie Co. v. Lucas, 236 N. C. 90, 72 S. E. 2d 11, 34 A. L. R. 2d 1115, anno. 1121.
Finally, appellant claims that under G. S. 1949, 66-305 he is entitled to have an attorney’s, fee in a reasonable amount fixed by the trial court. We agree.
The judgment of the trial court is reversed with directions to enter judgment in accordance with the views set out in this opinion and, in addition thereto, that court should determine and allow a reasonable attorney’s fee to appellant. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises from the refusal of the trial court to enjoin a road improvement project.
The action was commenced on November 18, 1953, the sole defendant being the board of county commissioners. In their petition the plaintiffs alleged the status of all parties and that on September 16, 1952, the defendant attempted by resolution to create a certain road benefit district upon a petition filed, the petition and resolution being incorporated by reference; that notwithstanding the fact the proposed benefit was limited to unincorporated areas, the petition requested and the defendant board purported to establish an improvement not limited to the benefit district but on the contrary extended beyond the district and into the incorporated area of the city of Fairway; that the order attempting to provide for such road improvement beyond the limits of the benefit district was void for the reason that the attempted improvement by the defendant board into the city of Fairway was contrary to the provisions of G. S. 1949, 68-701 to 706 inclusive, in that the board did not have power to establish a road improvement which lay within the incorporated limits of the city of Fairway. It was alleged that since in February, 1953, die city of Fairway was a city of the second class. (As is shown later it was a city of the third class when the improvement project was initiated.) It was further alleged that on September 16, 1953, detailed plans were filed with the defendant calling for the acquisition of a sixty-foot right of way including such a right of way within the city of Fairway, and on October 16, 1953, the defendant board let a contract for the construction of the improvement and directed the construction to proceed outside the area in the benefit district, and that the acts of the defendant board in approving the plans calling for a sixty-foot right of way and in letting the construction contract were and are void. Allegations as to the issuance of temporary notes the proceeds of which were to be used in the construction need not be detailed. It was then alleged that the defendant board was threatening to take a part of plaintiff’s real property in the city of Fairway as part of the sixty- foot right of way and unless the defendant board was enjoined, plaintiffs would suffer irreparable damage. Allegations as to illegally assessed taxes to pay costs of the project need not be detailed. In substance plaintiffs sought a permanent injunction against the defendant board from proceeding with the project, from attempting to acquire right of way therefor and from levying taxes to pay the costs of the improvement. To clarify what is said later, we note the prayer of the petition did not ask for any restraining order nor for a temporary injunction and neither was ever granted.
On March 18, 1954, the plaintiffs’ motion that the city of Fairway be made a party defendant and that plaintiffs be allowed to file a supplemental petition was sustained, and on April 1, 1954, a supplemental petition was filed. It was alleged therein that the city of Fairway was a city of the second class; that other temporary notes had been issued by the defendant board; that since the filing of the original petition the defendant city at the request of the defendant board was attempting to condemn the lands of plaintiffs for the use of the defendant board in order to carry out the improvement, and that the city, on March 17, 1954, instituted proceedings in eminent domain in the district court for that purpose; that the acts of the city were null and void for the reason the city had no lawful right or authority so to do. The remainder of the pleadings and the prayer are an expansion of the original petition and prayer. We note that only a permanent injunction was sought.
The board of county commissioners filed an answer containing a general denial and an allegation the cause of action was barred by the provisions of G. S. 1949, 68-701.
The city filed an answer containing a general denial and alleged' at length that on March 1, 1954, it passed a resolution declaring it necessary to appropriate private property for widening and improving a city street, Mission Road; that on March 8, 1954, it passed an ordinance setting forth the condemnation for the above purpose; that on March 17, 1954, it made application to the district court, describing the land to be taken and asking for the appointment of appraisers; that the judge made an order appointing appraisers, who gave requisite notice and thereafter appraised the lands, and made report thereof and on April 14, 1954, the condemnation moneys were deposited with the city treasurer for the benefit of the owners of the lands condemned. After alleging that the report of the commissioners in condemnation had been made a matter of record and that the city had taken possession of the condemned real estate, the city alleged the issue raised by the plaintiffs’ supplemental petition had become moot.
At the trial on the issues joined, the entire evidence consisted of the admissions made by the pleadings and the public records and documents of the defendants relative to the road improvement. These various documents, as abstracted, disclose the project was initiated at some undisclosed date prior to September 2, 1952, by the filing with the board of county commissioners of a petition asking for the improvement of a certain road in the county named Mission Road from 75th Street north to Johnson Drive at a minimum width of sixty feet to be acquired by gift, purchase or condemnation, as provided by G. S. 1949, 68-703, and that it be paved at a width of 36 feet. The petition stated that Mission Road in part abutted the cities of Prairie Village and Mission Hills and passed through the cities of Prairie Village and Fairway and that those cities had approved and endorsed the proposed improvement. On September 2, 1952, the city of Fairway adopted a resolution reciting that a petition had been filed for the improvement of Mission Road; that Mission Road was a county road, part of which was within the city limits; that it was a third class city and under G. S. 1949, 68-706, as amended, it should apply to the board of county commissioners for assistance from the county in the continuation of the improvement from city limits to the center of the city, and it was resolved that the city should apply for such assistance.
The evidence further disclosed that on September 16, 1952, the matter came on for hearing on the petition before the board of county commissioners and it then adopted a resolution, in substance finding that the improvements prayed for were of public utility and necessary to be done; that the petition designated the road by name and fixed terminal points, type of improvement, width of roadway and was in compliance with G. S. 1949, 68-701 to 717, and amendatory acts; that proper notice had been given of the hearing, and it ordered that the improvement be made. On October 19, 1953, the board of county commissioners awarded a contract for the construction of the entire Mission Road project including that part within the city of Fairway.
The abstract contains a statement that the plans for the improvement called for a maximum width of pavement of 49 feet in a part of the city of Fairway, although the resolution called for a pavement of 36 feet. For whatever it may be worth and whether it is of any importance in deciding the issue, we were advised at oral argument the increased width was in compliance with the demands of the state highway commission engineer. Such a demand may be made. See G. S. 1949, 68-703.
Included in the abstract is a letter of Febuary 2, 1954, from the board of county commissioners to the city expressing some doubt about the county’s power to maintain proceedings to condemn property within the city. Thereafter and on March 1, 1954, the city adopted a resolution containing a series of whereas clauses setting forth precedent events and resolving that its engineers make an accurate survey of lands necessary to be appropriated and declaring the appropriation necessary and expedient for the best public interest. Although the proceedings are not abstracted it is conceded a proceeding in condemnation was instituted by the city and the necessary lands taken.
Before taking up appellants’ contentions of error we note the challenge of the appellee board of the appellants’ right to be heard and also its contention that the record discloses the action was not timely instituted under the requirements of G. S. 1949, 68-704, unless commenced within sixty days from the date certain proceedings were had. We are not disposed to elaborate on this for the action was commenced within sixty days from the awarding of the contract. An examination of the question compels a review of the entire record to determine whether action on the contract should be enjoined. We also note an objection by the appellees to consideration of the appeal for the reason that at no time was any restraining order or temporary injunction asked or granted, and that the improvement has now been completed and the cost paid the contractor, and the question is now moot. That objection will be considered in what is later said.
The first and pivotal question is whether, under the provisions of G. S. 1953 Supp., 68-706, the county in improving a road under the statute of which the above section is a part, had the authority to construct that part of the road lying within the. city limits of the city of Fairway, a city of the third class at the time proceedings for the improvement were initiated. Although appellants present an extended argument that the county possessed no such authority, the gist of their argument is that where such a project was to be constructed, the county’s only obligation and authority was to con tribute financially to the city for the part of the road within the city and that the county had no power or authority to contract for the entire improvement.
It may be conceded that the section of the above statute is not as explicit as it might be but we think a fair analysis of it compels a conclusion that the appellants’ contention cannot be sustained. The entire section is long and need not be fully reviewed. The first part deals generally with the apportionment of the cost of the improvement among the county, the township and the benefit district, for the holding of a special session of the board of county commissioners to hear complaints and the fixing of assessments within the benefit district, and the payment of assessments, none of which are here involved. The statute then states:
“. . . In the event that a benefit-district road is constructed to the city limits of a city of the third class, the city officials shall apply to the board of county commissioners for assistance in the continuation of said improvement through the city, or from the end of the benefit-district road to the center of the city. The board of county commissioners shall then appropriate from the county funds, or issue bonds if necessary, to pay for fifty percent (50%) of the cost of the improvement after deducting all federal and state aid and donations, and the city at large the remaining fifty percent (50%) apportioned on an equitable ratio among the taxpayers, as prescribed by the council or other governing bodies, and may issue city bonds to pay the city’s share of the cost of such improvements, unless the city council decided to pave and does pave the streets to be included in such improvement with pavement of equal quality under the law authorizing paving in such cities. In such case the county’s share of improving such city street as provided herein shall be applied toward the cost of such pavement: Provided further, That the type and width shall be the same as constructed outside the city limits.”
That the county was not limited to extending financial assistance, as contended for by the appellants, seems clear from the provision the city shall pay 50% of the net cost apportioned on a reasonable basis or may issue bonds to pay its share, unless it decides to and does pave the street included in the improvement. We think it clear that the statute contemplates either that the county, when the city shall so apply, may construct that part of the improvement within the city, or that the city may itself construct that part of the improvement. In the instant case, the city did apply for assistance, and under proceedings the regularity of which was not attacked, an arrangement was made for the county to do the work. Not until after the contract for construction was awarded was there any attack made. In our opinion the county had authority to con struct that portion of the improvement lying within the city as a part of the entire improvement project.
Appellants state as their second contention that the city of Fairway had and has no authority to condemn land for the use of the county. We think the assumption the taking was for the use of tire county unduly limits the question for consideration, for the widening of Mission Road, which in the city is a city street, was for the benefit of all persons traversing it. Whether residents of the county, city or elsewhere using Mission Road through the city are in tire majority need not be determined. The widening may have been of benefit to the county but certainly it was for the benefit of the city.
We agree with appellants’ statement that neither the county nor the city had an inherent power of eminent domain and that neither could exercise such power unless authorized to do so. As the county did not attempt to exercise the power, it is not necessary that we discuss whether it had such power. Insofar as the city is concerned appellants do not refer to the fact that when the road improvement project was initiated the city of Fairway was a city of the third class but was a city of the second class when it instituted condemnation proceedings and in view of the statutes later mentioned and the powers conferred, we need not decide whether the power the city had when the project was initiated continued until it was completed. Cities of the third class have power to widen any street (G. S. 1953 Supp., 15-427) and are given the power of eminent domain for specified purposes and “. . . for any other necessary purpose . . .” (G. S. 1949, 15-439). Second class cities have like powers for like purposes (G. S. 1953 Supp., 14-423, and G. S. 1949, 14-435). Under G. S. 1949, 26-201, it is provided, in part, that
“Whenever it shall be deemed necessary by any governing body of any city to appropriate private property for the opening, widening, or extending any street or alley, or to condemn private property or easement therein for the use of the city for any purpose whatsoever, the governing body shall cause a survey and description of the land or easement so required to be made by some competent engineer and file with the city clerk. And thereupon the governing body shall make an order setting forth such condemnation and for what purpose the same is to be used.”
Appellants direct attention to the phrase “for the use of the city” and contend that the widening is for the use of the county and not for the use of the city and therefore there is no grant of authority to the city. In view of what has been previously said, we need not say more as the lands were taken for the benefit of the city. Under the last statute the city had the power to condemn land for widening the road or street involved. There is no contention by appellants that the procedure outlined in the last statute was not complied with fully.
Appellants’ third and fourth contentions are in part directed to the allegation in the appellee city’s answer that by reason of its condemnation in eminent domain having been completed, the controversy is moot and in part directed to the anticipated statement later made in the briefs of both appellees that the construction of the proposed improvement has been fully completed and the matter is moot. Appellants’ third contention is that the matter of the right of the appellee city to proceed in eminent domain is not rendered moot merely because such condemnation proceedings have been had and affected owners have appealed. Appellants’ fourth contention is that despite completion of the improvement, the county acted without authority insofar as the road lies in the city and the court should order the county to restore Mission Road within the city of Fairway to its former state or in the alternative, enjoin payment to the contractor for the portion of the roadway in Fairway, enjoin assessment and collection of taxes, and enjoin the use of that portion of the purported road in Fairway which remains unpaved. Except as hereafter mentioned, each of the above contentions is predicated on an assumption the county had no power to contract for the entire improvement and on an assumption the city could not provide for widening of the roadway. These assumptions are not good. An included argument that the roadway was to be paved at a width of 36 feet as fixed by the original resolution, but that in a part of Fairway where Mission Road enters Johnson Drive it was paved at a width of 49 feet, may be answered by repeating that the plans and specifications had to be approved by the state highway engineer. We are advised and it is not denied that that official made the requirement for the increased width. Another included argument is that the city and county should be enjoined from taking any of the sixty-foot right of way on which pavement has not been laid. There is nothing to indicate the city or the county did not act properly in fixing the overall width of Mission Road at sixty feet. It was not necessary that the pavement extend the full width. Room was properly left to provide drainage, shoulders, or other works to make the improvement a completed project. We are cited to no authority holding that in an improvement project, whether of the type presently involved, or of a city street, that the governing body may take only such land as is to be paved, and in our judgment that is not the law.
In view of the issues presented, the evidence adduced, and the contentions made, we have considered the whole matter. Possibly in some aspects the matter is moot but in view of our conclusion that phase will not be further discussed.
Some reference has been made in the briefs to the fact that appeals from the proceedings in eminent domain are pending. The appellants’ brief also makes reference to some action in trespass, which remains undisposed of in the trial court. We expressly refrain from any comment on these matters.
It follows from what has been said that the judgment of the trial court should be and it is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Stevens Enterprises, Inc., formerly U-Select-It Candy Service, Inc., hereafter referred to as the company or appellant, appeals from the judgment of the district court of Sedgwick county affirming an assessment of retailers’ sales tax upon the company made by the state commission of revenue and taxation, hereafter referred to as the commission, growing out of the ownership and operation of coin-operated merchandise vending machines.
In August, 1953, the director of revenue made an assessment of tax against the company based on its ownership and operation of coin-operated merchandise vending machines for a stated period of time. The company appealed to the commission which, after a hearing, fixed an assessment and in due time the company perfected its appeal to the district court as provided by G. S. 1949, 74-2426.
At the commencement of the hearing in the district court on January 6, 1955, the parties stipulated facts which we summarize. The company was engaged in the business of selling merchandise at retail through coin-operated vending machines owned by it and located at various places in Kansas. Each sale was a separate transaction and was for either five or ten cents, and during the period between April 7, 1951, and May 31, 1953, the company’s gross receipts from such sales were $553,029.09; the director of revenue of the commission made an assessment plus penalties and interest; the company appealed to the commission which by order made March 31, 1954, allowed certain deductions and credits and made an assessment of $8,393.78 and ordered payment within thirty days. It was further stipulated that pursuant to statute the director of revenue had promulgated rules and regulations for the administration, enforcement and interpretation of the retailers’ sales tax act (G. S. 1949, 79-3618); that he had filed the same with the re-visor of statutes in accordance with G. S. 1949, Ch. 77, Art. 4, and they were in full force at all times involved.
As a result of the hearing the trial court on June 15, 1955, found that the assessment made by the commission was valid and the amount last stated was due and owing by the company; that G. S. 1953 Supp., 79-3603 (/) was valid and did not violate the constitution of this state or the constitution of the United States and that the assessment made by the commission should be approved, sustained and affirmed, and it entered judgment accordingly. In due time the company perfected its appeal to this court where it assigns as error that the trial court erred in sustaining the assessment and in holding the last mentioned statute valid.
The parts of the statute primarily involved, which first appeared as G. S. 1951 Supp., 79-3603, for our purposes read:
“From and after fuñe 1, 1937, for the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or fur nishing any of the things or services taxable under this act, there' is hereby levied and there shall be collected and paid a tax as follows: . . . (f) a tax at the rate of two percent upon the gross receipts from the operation of any coin-operated device, whether automatic or manually operated; for example, but not by way of limitation: Pinball machines, mechanical music machines, mechanical games, and/or any merchandise vending machines.”
So far as pertinent it is noted that the “Kansas retailers’ sales tax act” was enacted by the legislature as Laws of 1937, Ch. 374, and appeared in G. S. 1937 Supp. as Ch. 79, Art. 36. Under 79-3619, provision was made for the issuance of metal tokens or script to enable purchasers to pay and retailers to collect the tax when a fractional part of a cent was involved. Under the above statute it was possible for a purchaser at retail to pay substantially the exact amount of tax due. Actually the tokens issued permitted exact payment of the tax on purchases of five cents or any multiple thereof. The section was amended by the legislature by the enactment of Laws of 1939, Ch. 332. That chapter, which need not be fully reviewed, repealed the provision for tokens or script and provided for agreements between competing retailers to provide uniform methods for adding and collecting the full amount of tax or an amount equal as nearly as possible or practicable to the average equivalent thereof, and authorized the director of revenue to adopt and formulate rules and regulations for adding and collecting such tax, or an amount equal as nearly as possible or practicable to the average equivalent thereof by providing different methods applying uniformly to retailers within the same general classification for the purpose of enabling such retailers to add and collect, as far as practicable, the amount of such tax. This section as amended appeared as G. S. 1939 Supp., 79-3619, and in subsequent supplements and statutes, and is frequently referred to as providing for the bracket system of determining the amount of tax to be collected on purchases of fixed amounts. Conforming to the amended statute the director of revenue did have hearings with various retailers and promulgated an order effective July 6, 1939, adopting a bracket system providing that sales from 1 to 14 cents bore no tax; that sales of from 15 to 65 cents bore one cent tax, and other progressive steps up to $9.99, when the tax was fixed at 20 cents. Under the bracket system a purchaser whose purchase was exactly fifty cents or some exact multiple thereof, paid the exact amount of tax due from him under the other provisions of the statute but otherwise he did not do so. And it may here be observed that the amended statute under consideration did not specifically authorize any exemption from tax due from a purchaser and collectible by a retailer. The rate of tax for the privilege of engaging in the business of selling tangible property at retail in this state was fixed at two per cent of gross receipts by G. S. 1937 Supp., 79-3603, and insofar as the rate of tax is concerned has never been changed. As applied here, we nóte that the legislature, by the enactment of Laws of 1947, Ch. 463, amended the section to add thereto, and subject to tax, receipts from the operation of “any coin operated amusement device, whether automatic or manually operated; for example, but not by way of limitation: Pinball machines, mechanical music machines and mechanical games.” (Emphasis supplied.) See G. S. 1947 Supp., 79-3603 (/). This was the statute in force when the situation arose considered in Rooney v. Horn, 174 Kan. 11, 254 P. 2d 322. The director of revenue attempted to assess tax against Rooney’s operation of candy vending machines. Rooney appealed to this court from a judgment holding him taxable, contending that at the times of operation by him the statute did not include “merchandise vending machines.” This court agreed and reversed. Reference is made to that opinion for the review of the statute. Before the Rooney case was decided, the legislature by Laws of 1951, Ch. 497, amended G. S. 1949, 79-3603, to include a tax at the rate of two per cent upon the gross receipts from the operation of a coin-operated merchandise vending machine. See G. S. 1951 Supp., 79-3603, as quoted above.
Pursuant to the section of the statute now appearing as G. S. 1949, 79-3618, the director of revenue, with the approval of the commission, promulgated rules and regulations for the administration of the retailers’ sales tax act, which as amended and in effect at times involved included the following:
“94-6-3. — Retailer Liable for Tax. The retailer of tangible personal property, or the person selling or furnishing any of the other things or services taxable under the provisions of the act is liable and responsible to the state for the entire amount of the two percent (2%) tax payable on his taxable gross receipts.
“Tax to be passed on. The retailer is required to pass on to the consumer or user the full amount of the tax imposed by this act, or an amunt equal as nearly as possible or practicable to the average equivalent thereof.”
94-6-4 pertains to the bracket system heretofore summarized.
“94-6-5. — Monthly Return: Payment of Tax. Every person engaged in a business taxable under this act is required to make monthly returns on forms provided'by the director of revenue and to pay the proper tax due.”
“94-6-7. — Gross Receipts. The measure of the tax is gross receipts from sales of tangible personal property or taxable service to those who purchase for use or consumption.
“ ‘Gross receipts’ means the total selling price or the amount received in money, credits, property or other consideration valued in money from sales at retail within this state.”
“94-6-13. — Taxable Transactions: Gross Receipts From Coin Operated Devices. Gross receipts from the operation of any coin operated device are taxable. Included are such devices as pinball machines, mechanical music machines, mechanical games, merchandise vending machines, radios, and any other coin operated device. The owner or operator of such equipment is held to be operating a taxable business at each place in which any piece of equipment is located, and must register for each location and report his gross receipts separately for each location.”
It may be observed that rule 94-6-3 finds support in and is in accordance with G. S. 1949, 79-3602 (h), since amended, and 79-3604; that rule 94-6-5 finds support in and is in accordance with G. S. 1949, 79-3607; that rule 94-6-7 finds support in and is in accordance with G. S. 1949, 79-3602 (h), since amended; and that rule 94-6-13 finds support in and is in accordance with G. S. 1949, 79-3602 (h), since amended, and G. S. 1951 Supp., 79-3603.
I.
Appellant’s first contention, as stated by it in question form, is whether, under our retailers’ sales tax act and the rules and regulations promulgated under the act, is appellant required to pay a tax on its gross receipts from sales of five and ten cent items sold through vending machines when, under the statute, the tax is to be borne by the purchaser, cannot possibly be collected by appellant from the purchaser and which the statute actually prohibits appellant from collecting. The gist of its argument is that the state may not enforce payment from the appellant; that as originally enacted the statute provided for the issuance of tokens to enable purchasers to pay and retailers to collect the tax when it amounted to a fraction of a cent (G. S. 1937 Supp., 79-3619); that the section was amended in 1939 (now G. S. 1949, 79-3619) to provide the director of revenue was authorized to promulgate rules for adding and collecting the tax to enable retailers to add and collect, and that the basic principle is that the ultimate consumer pay the tax, citing Southwestern Bell Tel. Co. v. State Commission of Revenue and Taxation, 168 Kan. 227, 212 P. 2d 363; that under the statute the retailer is not the one liable to the tax, but merely the medium provided for collection from the consumer and for remittance to the state and our attention is directed to rule 94-6-3 which does provide, in part, that the retailer is required to pass on to the consumer the full amount of the tax, and to a sentence in Rooney v. Horn, supra, that:
“There are no tokens now so he cannot collect less than one cent and should he set up his machine to collect a one-cent tax on each sale he would be confronted by the provision that on sales from one cent to fourteen cents there shall be no tax.”
Appellant further argues that under G. S. 1949, 79-3604 and 3605, the tax is to be paid by the consumer to the retailer and that it is the duty of the retailer to collect from the consumer, and that it is unlawful for any retailer to advertise or hold or to state to the public or any consumer that the tax will be assumed or absorbed by the retailer; that G. S. 1949, 79-3615 (4) makes it an offense to violate any section of the act; that under rule 94-6-4 it is impossible for a retailer to collect a tax on a sale of less than fifteen cents, and that under the law appellant cannot collect the tax, or if it does, it violates the provisions of the provision for a bracket system and rule 94-6-4 promulgated thereunder.
As has been mentioned heretofore, under the original retailers’ sales tax act provision was made for tokens which permitted payments of tax where a fraction of a cent was involved and permitted exact payment on sales of five cents or any multiple thereof. But under that act the stated purpose was to enable purchasers to pay and retailers to collect a fractional part of a cent “insofar as the same can be done” (G. S. 1937 Supp., 79-3619). Under G. S. 1937 Supp., 79-3602 (/) “taxpayer” was defined to mean “any person obligated to account to the commission for taxes collected under the terms of this act.” While the section has been amended in parts, the above definition has never been changed and now appears as G. S. 1955 Supp., 79-3602 (i). Under G. S. 1937 Supp., 79-3607, and that section has never been changed, the retailer did not report to the commission the amount of tax he had collected from the purchaser but on the contrary he reported under subdivision (b) the total amount of gross sales of all tangible personal property and taxable services rendered by him. The next to the last sentence of the section requires “The person making the return herein required, shall, at the time of making such return, pay to the commission the amount of tax herein imposed.” Under G. S. 1937 Supp., 79-3603, the rate imposed was two per cent upon gross receipts. Although at the time no provision was made for vending machines of any sort, it is quite clear that as to types- of sales or of services covered, the amount due the state and payable by the retailer was based on gross receipts and not on amounts of taxes collected. Even under the token system it is apparent the retailer, unless all articles or services sold by him were for five cents or multiples thereof, collected some amount greater than he was required to pay the state.
Nor do we attribute to the so-called bracket system and the rules promulgated for its administration the force appellant does. When the bracket system was authorized by what is now G. S. 1949, 79-3619, it did not pretend to change the retailer’s liability to pay to the state two per cent of his gross receipts. It did recognize that exact payment of sales tax without the use of tokens would produce a lack of uniformity as to the amount collected by the retailer from the purchaser, not what amount the retailer should pay the state on his gross receipts, and provided a means of procuring uniformity. The concluding sentence of the section reads:
“The director of revenue shall have the power to adopt and promulgate rules and regulations for adding and collecting such tax, or an amount equal as nearly as possible or practicable to the average equivalent thereof, by providing different methods applying uniformly to retailers within the same general classification for the purpose of enabling such retailers to add and collect, as far as practicable, the amount of such tax.” (Emphasis supplied.)
Attention is directed to the emphasized parts. Rule 94-6-4 carried out the first provision, and rule 94-6-13, although not originally covering merchandise vending machines, classified gross receipts from coin-operated devices. After the legislature amended the statute to include merchandise vending machines the rule was amended to cover and now appears as quoted, in part, above.
We are not impressed by the argument that imposition of a tax liability on the retailer, under the circumstances obtaining, compels it to commit a crime. First, it is a matter of appellant’s own choosing that its business consists of operating vending machines selling only five and ten cent items. The tax it is required to collect from the consumer is the full amount imposed by the act “or an amount equal as nearly as possible or practicable to the average equivalent thereof” and that amount is a debt from the consumer to it as a retailer (G. S. 1949, 79-3604). Simply because of the amount of its single sales, appellant has no effective means of collection does not render it guilty of a crime, and does not alter its obligation to pay the state two per cent of its gross receipts. Second, we are not presently concerned with appellant’s possible holding out that it will assume, absorb, or pay the tax denounced by G. S. 1949, 79-3605;“as being a compelled violation of the statute. There presently is no' contention it has done so. If appellant is ever prosecuted, the question can be determined whether a retailer, situated as it is, violates the statute.
In view of what has been said heretofore we find it unnecessary to discuss appellant’s contention that a tax on gross receipts from operation of a merchandise vending machine under the circumstances obtaining is an income tax, or that imposition of the sales tax has the effect of imposing' a double income tax on appellant. Neither need we discuss appellant’s argument it is not claiming an exemption.
In our opinion, appellant’s contention under this heading cannot be sustained. We hold, as did the trial court, that appellant as operator of merchandise vending machines, whose sales are either for five or ten cents per item, is required to pay a sales tax on its gross receipts.
II.
Appellant’s contention that collection of the tax from it, when it is unable to collect from the consumer and such collection, even if possible, would be a criminal act, violates the fourteenth amendment to the constitution of the United States and Art. 2, Sec. 17, of the constitution of this state, is divided into two parts.
With respect to the fourteenth amendment, appellant argues that the enforcement of G. S. 1951 Supp., 79-3603 (/) imposing a tax of two percent on the gross receipts of a merchandise vending machine, under the facts obtaining, deprives it of equal protection of the law. We do not agree with appellant’s assumption that prior to 1951 operators of vending machines were not required to pay sales tax. They were not prior to 1947, but in that year the statute was amended to cover coin-operated amusement devices, and that was the statutory provision when Rooney v. Horn, supra, was decided. For aught this record discloses the state has collected two percent of the gross receipts from such amusement devices regardless of whether the coin necessary to be used was a five cent piece, a dime or some larger coin, or whether or not the person operating the machine for his amusement paid a sales tax. We agree with appellant that it is engaged in a legitimate business but we think that to exempt it from tax because its sales" were less than fifteen cents each, and at the same time compel one whose sales were both above and below that figure to pay the tax, would create a situation where there was a lack of uniformity. It is not true that under the retailers’ sales tax act as a whole or under G. S. 1951 Supp., 79-3603 (/) in particular that appellant is denied due process of law, nor that it is denied equal protection of the law, under the fourteenth amendment. The effect of the last mentioned section of the statute was not an attempt to create an arbitrary classification. Appellant asserts, and we agree, that the tax in question is an excise tax as distinguished from a property or ad valorem tax. In such case the legislature may make a classification if it be natural and not arbitrary or capricious and treats all persons in the same class in the same way. See, State ex rel., v. Wyandotte County Comm'rs, infra. Under G. S. 1937 Supp., 79-3603, and as subsequently amended, it is provided that for the privilege of engaging in the business of selling tangible personal property at retail in this state, certain taxes are to be assessed upon gross receipts in what are now six classifications. The argument is not that these six classifications offend, nor that classification of gross receipts from coin-operated devices is not proper, but only that because appellant’s individual sales are each for less than fifteen cents, the result as to it is unconstitutional under the fourteenth amendment. As determined under the preceding heading, the fact the sales were of stated amounts and collection of sales tax from the purchaser was not possible or practicable, did not have the effect of relieving appellant from paying a two percent tax on his gross receipts. So considered, appellant was not without due process of law nor was it denied equal protection of the law. Conversely, it may be said that if the contention be upheld that by reason of the amount of its individual sales appellant was excused from tax, it would be granted a preference to the detriment of other retail sales taxpayers and to the owners of coin-operated devices which required deposit of fifteen cents or more for their operation. We cannot discern where appellant’s rights have been violated under the fourteenth amendment to the constitution of the United States.
With respect to our state constitution, appellant contends that the retailers’ sales tax act, as involved here, does not have uniform operation throughout the state and constitutes special legislation, and our attention is directed to Art. 2, Sec. 17, of our state constitu Ron providing that all laws of a general nature shall have a uniform operation throughout the state and in all cases where, a general law can be made applicable no special law shall be enacted.
The argument of appellant is predicated on propositions previously discussed under the first heading that the retailer must collect the tax from the purchaser; that in five and ten cent sales there is no legal tender so small that the purchaser can pay the tax; that G. S. 1951 Supp., 79-3603 (/) singles out appellant from other retail vendors who can and are required to collect the tax, and it is said it naturally follows that the last statute, attempRng to assess sales where the amount is less than fifteen cents, consRtutes special legislaRon, and our attention is directed to the rule stated in State, ex rel., v. Wyandotte County Comm'rs, 161 Kan. 700, 706, 171 P. 2d 777, quoted approvingly in Carson v. Kansas City, 162 Kan. 455, 458, 177 P. 2d 212, that:
“While the legislature has power to pass a law which applies to and operates uniformly on all members of a class without violating the mandate of the constitution the classification so created must be natural and genuine and based upon distinctions which have a reasonable and substantial relation to the subject matter involved in order for such law to be upheld as general in nature. On the other hand, if the classification attempted by its provisions is arbitrary, illusory, capricious or fictitious, the entire enactment is stricken down as being within the inhibition of the constitutional provision.” (Citing many decisions.)
Upon the premise laid, appellant argues that putRng merchandise vending machine operators in a class apart from other vendors of merchandise creates an arbitrary classificaRon bearing no honest relaRon to the subject of the tax, and that the classificaRon is illusory because the tax is to be paid by the purchaser, not the retailer, and that there is no real distinction between the two classes of sales, except that by law the merchandise vending machine operator is forbidden to collect the tax. We do not agree either with the premise laid, or with the statement that by law the vending machine operator is forbidden to collect the tax. What has been said on that subject must suffice. And the fact the appellant chooses to use vending machines making sales so small that it is not possible or pracRcable for it to collect tax from its purchaser does not render such classificaRon as is made in the retailers’ sales tax act arbitrary, illusory, capricious or fictitious. The fact is rather to the contrary. The statute provides that for the purpose of engaging in the business of selling tangible property at retail or in furnishing specified services, tax is levied, all at the same rate and without discrimination, upon the “gross receipts” in six specified particulars, one of which includes appellant. The statute contains no exception on account of the amount of any sale. No argument is advanced that the statute does not have uniform operation throughout the state, and we shall not discuss that phase further than to observe we know of no reason why any person coming within its terms is not bound. We hold that the statute is a general law and not a special law, and that the classification made in the statute does not offend the rule above stated or the constitutional provision. The appellant’s contention that the retailers’ sales tax act does not have uniform operation throughout the state and constitutes special legislation is not sustained.
In its brief the commission directs our attention to decisions from other jurisdictions involving sales tax acts, their application to vending machine sales, and other pertinent matters and generally upholding validity of its order, and in a reply brief appellant calls attention to distinguishing features from the case at bar. We find it unnecessary to take up these decisions and to comment thereon.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Parker, J.:
In this action, under pleadings not in controversy but joining issue on all questions pertinent thereto; judgment was rendered adjudicating the past, present and future rights of the parties to the landowners’ royalty payable under the terms of a basic oil and gas lease covering two quarter sections of real estate, which had been sold in two separate tracts to different purchasers after the execution of such lease. Plaintiffs, the purchasers of one of such tracts, appeal from the judgment decreeing they have no right to share in royalty payable for oil produced from an oil well located on the other quarter section of land, to which they have no title in either surface or minerals in place.
Many parties and interests are involved in this case. Nevertheless, once the complicated facts on which the lower court based its decision are set forth at length, its decisive issues become comparatively simple. The facts, as well .as the reasons for its decision, were fully covered by the trial court in exhaustive findings of fact and conclusions of law. Indeed, since the findings are not attacked by either party they must be regarded as controlling. For reasons just stated, and because we know of no better way to depict the factual picture in such manner as to avoid confusion respecting decision of the questions presented, such findings of fact and conclusions of law are appended to and made a part of this opinion.
Pertinent portions of the judgment, from which the defendants took no appeal, read:
“It is therefore by the court considered, ordered and adjudged that judgment be rendered herein upon the conclusions of fact and law filed herein by the court.
“It is further by the court considered, ordered and adjudged that the oil and gas mining lease covering North Half (N %) of Section Twelve (12), Township Seventeen (17), Range Nine (9), of Ellsworth County, Kansas, is valid, subsisting and in full force and effect as to all of the real estate or originally embraced therein, and the defendants Inez B. Janzen, Elda Carol Janzen Perkins, Edwin Janzen, Melvin R. Janzen and Thelbert Janzen are estopped from claiming that the oil and gas lease is invalid.
“It is further by the court considered, ordered and adjudged that the plaintiffs have no right, title to, or interest in the Northwest Quarter (NW K) of Section (12), Township Seventeen (17), Range Nine (9), in Ellsworth County, Kansas, and no right to any of the royalties paid from oil produced from a well or wells located thereon.
“It is further by tire court considered, ordered and adjudged that the whole land owner’s % royalty of oil produced from the Northwest Quarter (NWS) of Section Twelve (12), Township Seventeen (17), Range Nine (9), of Ells-worth County, Kansas is owned by the defendants Janzen in the proportions shown by the division orders signed by all such defendants and are entitled to the % royalty in all oil heretofore produced and all oil hereafter produced from said described real estate.”
At this point disposition of the appellate issues involved will be simplified by brief reference to the identity of the parties and their respective interests.
The plaintiffs, some of whom had earlier joined in the basic oil and gas lease covering the north half of section twelve, subsequently acquired title to the northeast quarter of such section, as the result of a partition action, under a sheriff’s deed reciting that tract of land was conveyed subject to such lease.
In the course of the same partition action, wherein judgment was rendered decreeing partition of the north half of section twelve and directing its sale in two separate tracts, subject to the basic oil and gas lease above mentioned, the defendant Inez B. Janzen bid in the northwest quarter of such section, subject to such lease. Thereafter she acquired title to such tract under a sheriff’s deed reciting that it was conveyed subject to that lease. Subsequently, Mrs. Janzen, her husband joining, executed four separate conveyances of mineral interests in and to the northwest quarter, granting a one-eighth mineral interest to each of the defendants Elda Carol Janzen Perkins, Edwin Janzen, Melvin R. Janzen and Thelbert Janzen, each conveying instrument stating that the sale of the interest therein conveyed was made subject to the terms of such lease. Thus it appears the interests of these grantees are the same as those of their mother, Mrs. Janzen. For that reason, and for another to be presently disclosed, the defendants Janzen, including Elda Carol Janzen Perkins, will be hereinafter referred to in this opinion as the appellees.
Except for the individuals above mentioned the interests of all other persons named herein as defendants spring from the seven-eighths working interest granted to the original lessee by the terms of the basic oil and gas lease. Plaintiffs have not appealed from the portion of the judgment holding that instrument is valid, subsisting and in full force and effect as to all the real estate originally embraced therein. And, as we have heretofore indicated, none of the defendants have perfected appeals from the judgment. Therefore, except for Sohio Petroleum Co. Inc., which has impounded the royalty due to landowners under the terms of the lease and stands ready to pay the same to whomever may be entitled thereto, none of the defendants having rights in the seven-eighths working interest will be affected by this appeal.
Since they give rise to this controversy two other matters, even though the facts with respect thereto are to be found in the appendix, should be specifically noted.
The first is that the northwest quarter of section twelve, now owned by the appellees, and the northeast quarter of the same section, now owned by appellants, were each acquired by their present owners subject to a basic oil and gas lease, containing what is known to the oil industry as an entirety clause which, so far as here pertinent, reads:
“If the leased premises are now or hereafter owned in severalty or in separate tracts, the premises, nevertheless, may be developed and operated as an entirety, and the royalties shall be paid to each separate owner in the proportion that the acreage owned by him bears to the entire leased area. There shall be no obligation on the part of the lessee to offset wells on separate tracts into which the land covered by this lease may hereafter be divided by sale, devise, or otherwise, or to furnish separate measuring or receiving tanks for the oil produced from such separate tracts.”
The second of such matters is that after appellants and appellees had acquired title to their respective tracts of real estate a producing oil well was brought in on the northwest quarter of section 12, whereupon appellants claimed that, under the existing facts and circumstances, they were entitled to the proportion of the landowners’ royalty that the acreage owned by them bore to the entire leased area, namely one-half, under and by virtue of the entirety clause of the basic lease. On the other hand appellees claimed that all of such production belonged to them as the owners of the tract on which it was produced.
Upon careful analysis of the contents of the appendix, and what has been heretofore stated, it becomes obvious that the principal question presented by this appeal can be stated thus: Where a half section of land, covered by a basic oil and gas lease containing an entirety clause such as has been heretofore quoted, is sold at partition sale and each quarter section thereof is purchased and acquired by a different owner or owners subject to the terms and conditions of such lease, do the purchasers of one of the quarter sections, upon which there is no oil being produced, participate in the landowqer’s share of the oil thereafter discovered and produced from the other quarter section in the proportion that the acreage owned by them bears to the entire leased area?
We know of and are cited to no authorities holding that the inclusion in an oil and gas lease of an entirety clause, such as is here involved, makes either the instrument or the clause itself void, invalid or unenforceable on grounds of public policy or for any other reason. Indeed our view is that the person or persons legally entitled to execute an ordinary oil and gas lease may, for the protection of all parties thereto, including the grantor and grantee and their successors in interest, lawfully make provision for the manner in which (a) the leasehold is to be operated and (b) payment of the landowner’s share of oil and gas rentals, either in cash rental or a share in production, is to be made during its tenure. In our opinion to hold otherwise would result in depriving the fee owner of the real estate of rights possessed by him at the time of the negotiation of the lease.
Having determined the entirety clause placed in the basic oil and gas lease at the time of its execution by the then fee owners of the involved real estate was neither invalid nor unenforceable the second phase of the decisive question involved in this case be comes, as we have previously indicated, quite simple. In the face of the record the incontrovertible facts are that appellees, and for that matter the appellants, acquired the respective tracts of real estate on which they now base their royalty claims prior to the discovery of oil on either tract under partition proceedings and sheriff’s deeds specifically reciting that each tract of real estate was being sold and conveyed subject to the terms and provisions of such oil and gas lease. That, under our decisions (See, e. g., Schmucker v. Sibert, 18 Kan. 104, 111; Foetisch v. White, 124 Kan. 136, 140, 257 Pac. 941), meant that when they accepted their respective deeds they made them contracts in writing whereby they not only took, but agreed to take, their particular tracts with whatever benefits or burdens might eventually come to them under the terms of such lease. Included in the benefits and burdens of that instrument were those imposed by the terms of the entirety clause which has been heretofore quoted and need not be repeated. Having agreed to accept its terms and conditions neither appellees nor appellants can now be heard to dispute or deny that during its existence royalties accruing from the entire acreage of the land covered by the terms of the basic oil and gas lease shall be paid to them as separate owners in the proportion that the acreage now owned by them bears to the entire leased area. It necessarily follows that the heretofore posed decisive question involved in this appeal must be answered in the affirmative.
We are unable to agree with appellees’ contention the conclusion just announced is contrary to Carlock v. Krug, 151 Kan. 407, 99 P. 2d 858, wherein it is held:
“When a tract of land npon which an oil and gas lease has been given is subsequently divided into different ownerships, the owners of the separate parcels or mineral interests are only entitled — in the absence of specific provisions or agreements to the contrary — to the royalties accruing from production on the particular tract to which their ownership attaches.” (Syl. j[ 1.)
On the contrary it is our view that under the facts, conditions and circumstances of this case such conclusion is in entire accord with what is there said and held. Here, as we have pointed out, the parties took title to their respective tracts of real estate under an agreement that the interests acquired therein were subject to an oil and gas lease which, when carefully analyzed, expressly provides that in the event the mineral interests became separately owned the royalties accruing from the existing lease should nevertheless be treated as an entirety and the separate owners of the leased acreage participate therein pro rata.
Nor are we in accord with appellees’ position all other provisions of the involved entirety clause are wholly dependent upon the phrase “the premises, nevertheless, may be developed and operated as an entirety.” Our view, conceding that such phrase gave the lessee an option to develop the leased premises in their entirety, is that when all the provisions of such clause are read together they must be construed to mean that if after the execution of the lease the leased premises are owned in severalty or in separate tracts royalties payable from production shall be paid to the separate owners in the proportion therein stated, irrespective of the manner in which the lessee has seen fit to develop the entire leased area. This construction leads to the additional conclusion, as we have previously indicated, that such entirety clause must be regarded as entered into for the benefit of all parties executing it, not solely for the benefit of the lessee. So construed and, on the basis of what has been previously said and held in preceding paragraphs of this opinion, it necessarily follows that, under the existing facts and circumstances, all conclusions of the trial court to the effect such clause is ineffective as against present owners of the fee and should not be enforced are erroneous.
Many other questions are raised and discussed in the briefs. However, in view of our disposition of what we have said and held is the decisive question involved on this appeal such questions, as well as decisions cited in their support, have become immaterial and need not be considered or discussed.
Portions of the judgment heretofore mentioned and described as not involved on this appeal are affirmed. All other portions of such judgment are reversed with directions to enter judgment in favor of appellants in conformity with the views herein expressed.
It is so ordered.
APPENDIX
THE COURT’S CONCLUSIONS OF FACT
From a careful and complete consideration of the evidence, including those portions of the pleadings which may properly be considered as such, and including the stipulations of the parties, the court makes and renders the following conclusions of fact and of law.
1. That on July 15, 1948, the plaintiffs, except the plaintiff Dorothy Goff, together with Mrs. George W. Hoffman, a widow, Laura Basye and John Basye, her husband, Ella Rathbun and Dick Rathbun, her husband, Henry Hoffman and Ella Hoffman, his wife, Elmer Hoffman and Carmen Hoffman, his wife, Mrs. George Campbell and George Campbell, her husband, and Eva Mauch, a widow, duly signed, executed, and acknowledged as lessors and delivered to H. V, Elwell as lessee an oil and gas lease in the farm denominated as a Form 88 B plus lease, a copy of which has been admitted in evidence as plaintiff’s Exhibit B, covering the following described real estate situated in the county of Ellsworth and State of Kansas, to-wit:
The North Half (NK) of Section Twelve (12), Township Seventeen (17), Range Nine (9), containing three hundred twenty (320) acres, more or less.
2. That on July 15, 1948, the above-named lessors were owners in fee simple of the above-described real estate.
3. That the parties to the subject oil and gas lease agreed that the same “shall remain in full force for a term of five (5) years,” from the date of July 15, 1948, and “as long thereafter as oil or gas, or either of them, is producing from said land by the lessee, or the premises are being developed or operated.” That said lease further provided that if operations for the drilling of a well be not commenced on said land on or before July 15, 1949, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the Lorraine State Bank at Lorraine, Kansas, or its successors, the sum of Three Hundred Twenty Dollars ($320.00), which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date, and that in like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods and the same number of months successively. No party disputes the fact that delay rentals for the entire acreage were paid by the lessee or his assigns on or before the 15th day of July in 1949, 1950, 1951 and 1952.
4. That tire subject oil and gas lease further provides that if the lessee shall commence operations within the term of the lease or any extension thereof, the lessee shall have the right to drill such well to completion with reasonable diligence and dispatch, and if oil or gas, or either of them, be found in paying quantities, this lease shall continue and be in force with the like effect as if such well had been completed within the term of year's herein first mentioned.
5. That the subject oil and gas lease further provides as follows: “If the leased premises are now or hereafter owned in severalty or in separate tracts, the premises, nevertheless, may be developed and operated as an entirety, and the royalties shall be paid to each separate owner in the proportion that the acreage owned by him bears to the entire leased area. There shall be no obligation on the part of the lessee to offset wells on separate tracts into which the land covered by this lease may hereafter be divided by sale, devise, or otherwise, or to furnish separate measuring or receiving tanks for the oil produced from such separate tracts.”
6. That the subject oil and gas lease was duly recorded in the office of the Register of Deeds of Ellsworth County, Kansas, on the 1st day of October, 1948, at 8 o’clock A. M. of said day, and was subsequently assigned of record within the term to Emmett E. Pratt by H. V. Elwell on January 3rd, 1950, and by Emmett E. Pratt to the defendants Reren, doing business as the Okmar Oil Company, on the 20th day of January, 1950.
7. That on the 16th day of February, 1950, an action in partition covering the North Half (Nil) of Section Twelve (12), Township Seventeen South (17S), Range Nine West (9W), Ellsworth County, Kansas, entitled Laura Rasye, et al. vs. Ella Rathburn, et al., and numbered 5164 was filed in the District Court of Ellsworth County, Kansas, and service was duly and regularly obtained in said action upon all of the then owners as copartners of said real estate. That on the 9th day of October, 1950, judgment in partition of said real estate was duly entered in said cause, and the court duly found in said judgment that the subject oil and gas lease was valid and sub sisting and that said real estate should and ought to be partitioned or sold subject thereto. That on the 21st day of October, 1950, an Order of Sale pursuant to said judgment in partition was duly directed by the Clerk of the District Court of Ellsworth County, Kansas, to the Sheriff of said county, commanding him to sell said real estate at public sale, subject to said oil and gas lease. That notice of said sale, subject to said oil and gas lease, was duly published as required by law. That on the 27th day of November, 1950, the Sheriff of Ellsworth County, Kansas, duly offered said real estate for sale and sold the same in separate tracts as follows, to the following persons as the highest and best bidders therefor:
(a) The Northeast Quarter (NEK) of Section Twelve (12), Township Seventeen South (17S), Range Nine West (9W), Ells-worth County, Kansas, to Fred J. Hoffman, Anna Hoffman, Lena Kempke, Fred W. Kempke, Minnie Goff, and Dorothy Goff, who are the plaintiffs herein.
(b) The Northwest Quarter (NWK) of Section Twelve (12), Township Seventeen South (17S), Range Nine West (9W), Ells-worth County, Kansas, to Inez B. Janzen, who is a defendant herein.
8. That the above-described sale of real estate in partition was by the court confirmed on the 9th day of December, 1950, subject to said oil and gas lease, and sheriff’s deeds to the respective purchasers as aforesaid, each subject to said oil and gas lease, were duly executed and delivered to the said purchasers on the 12th day of December, 1950.
9. That on or about the 25th day of June, 1953, the El Dorado Refining Company drilled a dry hole on the West Half of the Northwest Quarter of the said section, which was drilled, plugged and abandoned by that date. That an assignment of said West Half of the Northwest Quarter of said section from the defendants Beren, doing business as the Okmar Oil Company, to the FI Dorado Refining Company was duly recorded in Ellsworth County, Kansas, in the office of the Register of Deeds of said county, and is dated July 2, 1953, and that a quarter of the working interest in this assignment was duly assigned by the El Dorado Refining Company to T. E. Helling on July 6, 1953, and duly recorded. That on July 14, 1953, the defendants Beren, doing business as the Okmar Oil Company, duly assigned the lease on the East Half of the Northwest Quarter of said section to the defendant, Petroleum, Inc., and on July 13, 1953, the El Dorado Refining Company and T. A. Helling duly assigned the West Half of the Northwest Quarter of said section to the defendant Petroleum, Inc. That on July 15, 1953, the defendant Petroleum, Inc., duly conveyed to the defendants Beren, doing business as the Okmar Oil Company, a 1/32 overriding royalty interest in the Northwest Quarter of said section, and a 1/32 overriding royalty interest in the same area to El Dorado Refining Company and T. A. Helling, three-fourths of the same being to El Dorado and the remaining one-fourth to T. A. Helling. That on July 14, 1953, the defendants Beren, doing business as the Okmar Oil Company, duly conveyed one-half of the working interest in the Northeast Quarter of said section to the defendant Petroleum, Inc., and that the present ownership of the oil and gas lease insofar as the same covers the Northeast Quarter of said section is now vested one-half in the defendants Beren, doing business as the Okmar Oil Company, and one-half in the defendant Petroleum, Inc. That all of the instruments of assignment referred to in this paragraph were duly recorded in the office of the Register of Deeds of Ellsworth County, Kansas.
10. That on the morning of July 15, 1953, the defendant Petroleum, Inc., commenced drilling operations upon the North Half of Section Twelve, Township Seventeen South (17S), Range Nine West (9W), under the subject oil and gas lease, the operations for a well being commenced on the Northwest Quarter of said section. That said drilling operations were continued with due diligence, and that a producing oil well was brought in and completed on said real estate on August 12, 1953. That since said date, at the time of the filing of this action, and now, said oil well on said real estate is producing oil in paying and commercial quantities.
11. That the crude petroleum from oil runs of the oil well brought in on the subject real estate have been, since the first run September 16, 1953, sold to the defendant Sohio Petroleum Company, and that no disbursement has been made by the defendant Sohio Petroleum Company of the one-eighth of said oil runs payable in gross to the landowners under said lease. That as of the date of the filing of this action there was impounded by the defendant Sohio Petroleum Company to the credit of the owners of the undivided one-eighth royalty interest the sum and amount of One Thousand Eight Hundred Thirty-eight Dollars and Eighty Cents ($1,838.80), and that subsequent royalty interests to the landowners have been since said time and are now impounded, subject to the further order of the court.
12. That fractional working interests in and unto the lease on the Northwest Quarter of said section were subsequent to the commencement of the oil well referred to in the preceding paragraph assigned to the defendants R. H. Garvey; William W. Garvey; James S. Garvey; Olive W. Garvey; Jean K. Garvey; Olivia G. Lincoln; Ruth G. Cochener, executrix of the Estate of R. L. Cochener, deceased; Ruth G. Cochener; Shirley F. Garvey; Eve H. Jager; J. T. Ross; W. D. Ferguson; Albert Frahm; C. H. Chalmers and John T. Borton, partners, and David Jackman, Jr. That these defendants, and the defendants El Dorado Refining Company and T. A. Helling, were brought into this action as defendants on motion of the defendant Inez B. Janzen and over the objection of the plaintiffs.
13. That on July 21, 1953, plaintiffs sent a notice to the defendant oil companies requesting a release by them of their lease on the Northeast Quarter of the said section, which release was by said defendants refused. That the defendants Beren, doing business as the Okmar Oil Company, and the defendant Petroleum, Inc., by their answers filed herein, expressly claim to hold the Northeast Quarter of the said section by virtue of the commencement of and the completion of the producing oil well referred to above on the Northwest Quarter thereof.
14. That on the 12th day of August, 1953, the defendant Petroleum, Inc., by its agent, W. W. Fisher, caused to be executed, acknowledged, and on the 13th day of August, 1953, recorded in the office of the Register of Deeds of Ellsworth County, Kansas, an affidavit of production prepared under the provisions of G. S. 1949, 55-205, of the laws of the State of Kansas, stating that in compliance with the terms of the subject oil and gas lease a producing well was commenced under said lease on the 15th day of July, 1953, and completed on the 12th day of August, 1953, and stating that said lease is now in full force and effect as to all of the acreage covered by said lease for as long as oil or gas is produced from said land or any part thereof, and that said affidavit of production specifically referred to the North Half (NK) of Section Twelve (12), Township Seventeen South (17S), Range Nine West (9W), Ells-worth County, Kansas.
15. That on the 2nd day of August, 1953, the defendant Inez B. Janzen and her spouse executed four separate conveyances of mineral interests in and to the Northwest Quarter of said section, conveying a one-eighth mineral interest to each of the defendants Elda Carol Janzen Perkins, Edwin Janzen, Melvin R. Janzen, and Thelbert Janzen, children of the grantors, which conveyance contains the following provision: “Said land being now under an oil and gas lease executed in favor of, as appears of record, it is understood and agreed that this sale is made subject to the terms of said lease.” At the time of said conveyances the only unreleased oil and gas lease of record pertaining to said real estate was the subject oil and gas lease.
16. That in November of 1953 all of the defendants, except Sohio Petroleum Company, signed division orders furnished them by the defendant Sohio Petroleum Company, which division orders set forth the specific interest of each and every owner of an interest in the lease covering the Northwest Quarter in said section, and specifically stated therein the interest of the defendants Janzen to be the total one-eighth landowner’s royalty from production on said Northwest Quarter under the subject oil and gas lease. That although in the reply of said defendants to the answers of the defendant companies on defendants Janzen’s cross-petition it was alleged that these defendants under the age of majority repudiated their signatures on said division order, no evidence was offered as to the ages of any of the defendants Janzen.
17. That on November 23, 1953, the plaintiffs made demand upon the defendants Inez B. Janzen; Sohio Petroleum Company; Petroleum, Inc., and the defendants Beren doing business as the Okmar Oil Company for an accounting to them of their share as owners of the Northeast Quarter of said real estate. That said demand was unavailing.
18. That on February 19, 1954, the defendant Inez B. Janzen executed a release for surface damages to the Northwest Quarter of the said section insofar as the same pertained to the existing oil well, and accepted the check of the defendant Petroleum, Inc., in the amount of $40.00 for the same.
19. That on March 24, 1954, the defendant Janzen sent a notice to the defendant Petroleum, Inc., informing it that it was a trespasser upon the Northwest Quarter of the said section, sending the defendant Sohio Petroleum a copy of the same.
20. That the oil well on the Northwest Quarter of said section is located generally in the southwest quarter thereof and the tank batteries are located generally in the southwest corner of the Northwest Quarter of said section.
21. At all times since the completion of the well it has been operated by Petroleum, Inc.
22. That crude oil from said oil well located on the Northwest Quarter of said section was sold to Sohio Petroleum Company and that the company paid to the owners of the working interest and the overriding royalty interest, the proceeds from their respective shares of the oil severed and run from said Northwest Quarter during the time from September of 1953 to April of 1954, inclusive. Said payments were made in accordance with the provisions of the division order setting forth the interests of the different owners and signed by all of them and said payments so made were received by said interest holders and accepted by them.
23. The defendant Inez B. Janzen and her husband were vacationing in Colorado on the 15th day of July, 1953, when the defendant Petroleum, Inc., commenced actual drilling of the test well on the lands involved in this action. They received word by telephone from other members of their family approximately seven days after the commencement that drilling operations had been commenced and were then in progress. Neither Mrs. Janzen nor her husband, nor any of her children who later took an interest in the minerals under the Northwest Quarter of Section 12 through conveyances entitled “Sale of Oil and Gas Royalty,” made any objection to the drilling, completion or equipping of this well by Petroleum, Inc., until approximately eight months later on the 24th day of March, 1954, notwithstanding the fact that within said eight-month period the defendant Petroleum, Inc., had been in actual occupancy and possession of a part of the land involved in this action as the operator of the oil and gas well now located thereon.
24. That the defendant, Petroleum, Inc., as operator, on its own behalf and on behalf of other owners of a working interest made the following expenditures in the drilling, equipping and operation of the oil and gas well involved in this action:
Expense in drilling and testing said well.............. $21,366.37
Expense in casing and equipping said well for production, including surface equipment, such as pumping unit, tankage.................................... 13,470.77
Operating expense from August, 1953 to March 31, 1954 .......................................... 1,514.85
Operating expenses from April 1, 1954 to September 30, 1954 ........................... .......... 995.14
25. A total of $37,347.13 was expended by Petroleum, Inc., and the other owners of the working interest on the drilling, testing, equipping and operating of said oil well without objection from the defendants Janzen, and of that sum, some portion of the drilling and testing costs and all of the equipping and operating expenses prior to March, 1954, which in any event would total in excess of $15,000.00 was spent by Petroleum, Inc., and the other owners of a working interest without objection by the defendants after they knew that operations were being conducted and substantial sums of money spent.
26. The expenditures described in the next preceding findings were made by Petroleum, Inc., and the other owners of the working interest in reliance upon the validity of the oil and gas lease involved in this action.
THE COURT’S CONCLUSIONS OF LAW.
1. That the basic oil and gas lease executed and delivered on July 15,1948, and recorded on the 1st day of October 1948, covered the entire North Half (NI2) of Section Twelve (12), Seventeen South (17S), Range Nine West (9W), Ellsworth County, Kansas, the same being a tract of three hundred twenty (320) acres.
2. That on December 12, 1950, the plaintiffs acquired title to the Northeast Quarter (NE M) of Section Twelve (12), Township Seventeen (17), Range Nine (9), subject to the basic oil and gas lease, and has been since said date and is now the owner in fee of said Northeast Quarter (NE M), the same being a tract of one hundred sixty (160) acres.
3. That on December 12, 1950, the defendant Inez B. Janzen acquired title to the Northwest Quarter (NW M) of Section Twelve (12), Township Seventeen (17), Range Nine (9), subject to the basic oil and gas lease, and has been since said date and is now the owner of said Northwest Quarter (NW %), subject to the subsequent conveyance by the defendant Inez B. Janzen of an undivided one-half of her mineral interest in said real estate to her children, the defendants Elda Carol Janzen Perkins, Edwin Janzen, Melvin R. Janzen, and Thelbert Janzen, the same being a tract of one hundred sixty (160) acres.
4. That both plaintiffs and the defendants Janzen at the time of their acquisition of the aforesaid real estate were charged with notice of the contents and provisions of the basic oil and gas lease, and the ownership of the separate tracts described above by such parties was subject to said basic oil and gas lease.
5. That operations for the drilling of an oil well were commenced on the Northwest Quarter (NW K) of Section Twelve (12), Township Seventeen (17), Range Nine (9), within the term of the lease, and that said operations culminated in the development of a well producing oil in paying quantities on August 12,1954.
6. That by reason of the development of oil in paying quantities upon the subject real estate, the basic lease was extended beyond its primary term in full force and effect as to all of the North Half (N M) of Section Twelve (12), Township Seventeen South (17S), Range Nine West (9W), Ellsworth County, Kansas.
7. That said basic oil and gas lease is now valid, subsisting, and in full force and effect as to all of the real estate originally embraced in the same.
8. That the defendants Janzen, by their acceptance of payment for surface damages, by standing by in silence without asserting the invalidity of the oil and gas lease which is the subject of this action, and by permitting the owners of the working interests in the oil and gas lease to expend large sums of money in completing the drilling, testing and equipping of said well, and in the operating of the same for some eight months, are now estopped from claiming that the subject oil and gas lease is invalid.
9. That the entirety clause as contained in the lease is permissive only, and gives to the lessee the privilege of operating and developing or not operating and developing the lease as an entirety. It does not require the lessee so to develop and operate the leased premises. The clause in question being merely permissive to the lessee, it is therefore not legally sufficient to be tantamount to a severance of the lessors estate in the oil and gas minerals from their estate in the land itself; and such entirety clause which does not require the development and operating of the leased premises as an entirety is ineffective as against any owner of the fee.
10. That Inez B. Janzen, at the sheriff’s sale, purchased the fee title to the Northwest Quarter of Section 12, subject to the right of the lessee under the terms of the oil and gas lease thereon, and by said purchase she obtained title to all of the surface and mineral rights, including any royalties to be received therefrom owned by the former fee owners of said quarter section, and that by said purchase she became the owner of but one estate and that estate was and is unaffected by the entirety clause of the oil and gas lease.
11. That the plaintiffs have no right, title or interest in the Northwest Quarter of Section 12 and no right to royalties paid from oil produced from a well or wells located thereon.
12. The owners of the working interest in the oil and gas lease covering the Northwest Quarter have elected not to operate the lease under the provisions of the entirety clause and have elected to operate the Northwest Quarter of Section 12 separate from the Northeast Quarter thereof, as shown by the following:
A. The ownership of the working interest in the Northwest Quarter is in different parties and different interests as to common parties interested in the Northeast Quarter and the Northwest Quarter, and crude oil from both quarters cannot be mingled and tire proceeds accruing determined for each owner in one tank battery because of the diversity of ownership of the two quarters.
B. All of the owners of any interest in the oil and gas lease covering the Northwest Quarter have executed division orders covering the disposition of oil runs from the Northwest Quarter alone.
C. A tank battery has been erected in the Southwest corner of the Northwest Quarter of said section to receive the oil run from said well located on the Northwest Quarter.
D. Crude oil run from the Northwest Quarter from September of 1953 to April 1954 has been received and accepted by the owners of the working interest in the oil and gas lease covering the Northwest Quarter; and the owners of the Northeast Quarter, being different from the owners of the Northwest Quarter, have received none of the oil runs by reason of their ownership of the lease on the Northeast Quarter.
13. The division order executed and signed by all of the parties having an interest in the oil and gas runs from the Northwest Quarter of said Section 12 constitutes an agreement among these parties and a representation that the interest of each was as stated therein.
14. The ownership of the working interests, of the overriding royalty interests, and of the royalty interests of the several defendants Janzen, are each correctly set forth in the division order executed by all of the parties with reference to said Northwest Quarter of Section 12, Township 17 South, Range 3 West, Ellsworth County, Kansas, and as shown by Exhibits “A” to “E”, inclusive; and said defendants are each entitled to a judgment adjudging and affirming the same. That all parties are entitled to judgments consistent with and in accord with these conclusions.
15. The defendant Sohio Petroleum Company is entitled to an order and decree adjudging all title and ownership of the whole landowner’s one-eighth royalty of oil produced from the Northwest Quarter of 12-17s-9w in Ellsworth County, Kansas, to be owned by the defendants Janzen in the proportion shown by the division orders signed by all such defendants; and to an order and decree adjudging said defendants to be the owners, in like proportions, of the whole landowner’s royalty in all oil now accrued from said described 160 acres and held in suspension, together with all future proceeds of sale in like proportions.
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The opinion of the court was delivered by
Parker, J.:
This proceeding was commenced in the probate court of Cherokee County by Pearl K. Jeffery, who filed a petition in that court asking for the removal of J. M. Forbes, as guardian of the person and estate of Willie J. Osborn an incompetent, and for her appointment as guardian, on grounds Forbes was incapable of performing the duties of his trust and such action would be for the best interest of the incompetent. Forbes filed an answer to the petition in which he denied all charges relied on by the petitioner as grounds for his removal and asked she be denied all relief sought by her.
Following a full and complete hearing in probate court that tribunal made and entered its findings, order and judgment wherein it removed Forbes as guardian but, instead of complying with Jeffery’s request, appointed Laurance R. Mulliken, as guardian of the person and estate of such incompetent. Thereupon, as authorized by G. S. 1949, 59-2401 (2), Forbes took an appeal from such orders and judgment to the district court of Cherokee County by giving notice to all interested parties, including Mulliken.
When the case reached district court Mulliken was allowed to file a motion requesting the appointment of a guardian ad litem for the incompetent. He was also permitted to file an answer wherein, among other things, he alleged his appointment as guardian; admitted allegations, in the probate court petition and answer, of no importance to the appellate issues involved; denied generally all other allegations of those pleadings; averred that he was a proper and suitable person to act as guardian of the incompetent; asserted that the orders and judgment of the probate court were proper and should be sustained and then, as successor guardian, prayed for judgment in conformity with the judgment rendered by the probate court. Thereafter Forbes moved for an order striking Mulliken’s motion and answer from the files on grounds that (1) all allegations thereof were immaterial to the action and the issues to be tried; (2) that Mulliken was neither a necessary nor proper party to the action and had no interest in the issues from which the appeal from probate court was perfected; (3) that the issues joined by the pleadings in probate court by petitioner Jeffery and Forbes, i. e., the petition and his answer, were the only issues to be tried by the district court on appeal; (4) that Mulliken was an inter-meddler in the action and the district court on appeal had no jurisdiction to hear or determine the issues raised by him in his answer and motion. When this motion to strike was overruled the court appointed Joe L. Henbest, as guardian ad litem, who filed an answer and appeared thereafter in that capacity on behalf of the incompetent.
Subsequently, and asserting he was doing so as the duly qualified and acting guardian of the incompetent, Forbes demurred to Mulliken s answer on grounds it showed on its face it did not state facts sufficient to constitute a cause of action for the removal of Forbes, as guardian, the appointment of Mulliken as a successor guardian, or entitle the latter to the relief claimed in his answer. When this demurrer was overruled Forbes filed an answer wherein, again describing himself as the duly appointed, qualified, and acting guardian of the incompetent, he reasserted the matters relied on in his demurrer by way of defense, admitted immaterial allegations of Mulliken s answer and then denied all others of consequence.
With the original petition and answer in probate court, as well as the pleadings heretofore described as having been subsequently filed by Mulliken and Forbes, before it the district court called the case for trial and proceeded to hear evidence. Mulliken then called Paul Armstrong, one of the attorneys for Jeffery at the hearing in probate court. Immediately Forbes objected to the introduction of any evidence in the case on the ground the pleadings filed did not state facts sufficient for a cause of action or grounds for the relief prayed for. This objection was overruled and the court proceeded to hear the testimony. After Armstrong had been asked a few questions someone directed attention to the fact that Jeffery had made no appearance. Thereupon inquiry was made of Armstrong as to whether she was going to participate in the appeal. The record discloses he made, among other things, the following reply to such inquiry: “The statement I made immediately preceding was a voluntary appearance for and on behalf of Pearl K. Jeffery, but as far as any evidence is concerned, she does not desire to introduce any evidence in this matter.”
The trial court then permitted Mulliken to proceed with the introduction of his evidence. When all such evidence was adduced Forbes demurred thereto for the reason there had been no evidence to show cause for the removal of the guardian and no evidence recognized by law for the removal of a fiduciary. When his demurrer was overruled he then proceeded to adduce his evidence and rested. Mulliken then introduced evidence in rebuttal.
Without attempting for the moment to make further reference to the lengthy record of the evidence abstracted it may be stated that at the close of all such evidence* and after taking the matter under advisement for a few days, the court made, as we are advised, findings of fact almost identical with those made by the probate court at the time of the rendition of its judgment, which read:
“1. That Willie J. Osborn believes that he was not properly consulted about the appointment of the said J. M. Eorbes as his guardian, and does not approve of the same nor of the selection of attorneys by said guardian and further believes that said guardian and his attorneys are not properly handling and managing his estate, and because of such persistent belief upon the part of the said Willie J. Osborn, he has become and continues to be extremely nervous, agitated, and obstreperous and threatens bodily harm and violence to said guardian and his attorney.
“2. That because of the belief of the said Willie J. Osborn concerning the said guardian and his attorney, and its resultant effect upon the mental condition, health, and well being of the said Willie J. Osborn, the continuance of J. M. Forbes as guardian of his person and estate is detrimental to the health, mental condition, and general welfare of Willie J. Osborn and is a threat to the public peace and order. :
“3. That it would be to the best interests of Willie J. Osborn that J. M. Forbes be removed as guardian of his person and estate.
“4. That Laurance R. Mulliken of Columbus, Kansas, is a suitable and proper person to be appointed guardian of the person and estate of Willie J. Osborn, an incompetent person.”
And then as disclosed by the journal entry, after overruling Forbes’s motion for a new trial, rendered the following judgment:
“It is, therefore, by the court ordered, that the order of the Probate Court of Cherokee County, Kansas, entered on the 26th day of February, 1955, removing J. M. Forbes as guardian of the person and estate of Willie J. Osborn, an incompetent person, and appointing Laurance R. Mulliken as successor guardian of the person and estate of Willie J. Osborn, an incompetent person, be, and the same is hereby approved and adopted as the judgment and decree of this court; and it is further ordered that the said J. M. Forbes shall, within 45 days, file with the Probate Court his final account as such guardian, and shall pay and deliver to Laurance R. Mulliken as successor guardian all of the money, property, and assets of said estate in his possession or under his control; and it is further ordered that the costs of this action be taxed against the estate of said incompetent person, including a fee of one hundred dollars to the guardian ad litem.”
Following action by the court as heretofore indicated Forbes perfected the instant appeal.
At the outset appellant contends the district court did not have jurisdiction to try and determine the subject matter of the action. Let us see. The record discloses that issues were joined in the probate court respecting his removal as guardian and the appointment of a new fiduciary; that the probate court tried those issues and then rendered judgment removing him as guardian and appointing Mulliken; that the appellant took an appeal from those orders to-the district court under provisions of the statute (G. S. 1949, 59-2401 [2]) which not only authorized such an appeal but gave that coürt power and authority to hear and determine the very orders therein involved. Under such circumstances we have no difficulty in-concluding the trial court had jurisdiction of the subject matter of the action.-' In fact in view of appellants own statements, thrice repeated, once in his abstract and twice in his brief, to the effect his appeal to district court was from all orders, judgment and decisions made by the probate court, we have some doubt as to the seriousness of arguments made by him to the contrary.
Next, in attempting to establish the merits of the motion to strike Mullikens answer from the files and the demurrer to such answer, it is urged that since he was not named in the initiatory proceedings in probate court he was not a proper and necessary party on appeal to district court. We think what has already been stated, coupled with the fact that appellant himself saw fit to consider Mulliken as a party to the action by serving him with a notice of appellant’s appeal to district court from all orders made by the probate court affords sufficient- ground for rejecting this contention. Even so, since it is conceded that at the time appellant had been removed and Mulliken appointed, our decision need not be based entirely on Such a conclusion. Soon after the enactment of the probate code this court decided that an appeal from an order appointing a fiduciary does not revoke the order but merely suspends its operation after the appeal is taken and until it is determined. (See Hutchinson v. Pihlblad, 157 Kan. 392, 395, 139 P. 2d 835.) And in a later decision, In re Estate of Weaver, 170 Kan. 321, 224 P. 2d 1004, held:
“On appeal from a judgment appointing an individual as the sole executor of the estate of a deceased person such fiduciary is a necessary party to the appeal and must be made a party thereto.” (Syl. ¶[ 2.)
See, also, 39 C. J. S. Guardian and Ward, 75 §46 k (2), which reads:
“The newly appointed guardian is a necessary party to an appeal by the former guardian. On an appeal by a guardian from an order removing him, any person showing his right to be heard may, without being formally entered as a party, bring the appeal to a hearing. ...”
We are not disposed to labor contentions advanced by appellant in support of his motion to strike Mulliken’s answer from the files based on the theory the filing of such answer resulted in the commencement and trial of a new and independent proceeding in district court. As we have heretofore pointed out the all decisive issue in probate court from the very commencement of the proceeding was whether appellant was to be removed and a new guardian appointed and that was the issue there heard and determined. The decision with respect thereto was appealed to the district court where Mulliken, who before being appointed as guardian had neither occasion nor necessity for filing a pleading in any court, was permitted to file an answer and the appellant a response thereto. These pleadings in no sense changed the fundamental issue involved in the case which was then tried and determined by the district court on the basis of such issue as presented under all the pleadings of record. In our opinion, the statute itself (G. S. 1949, 59-2408) makes it clear that the trial court’s action in permitting the filing of the additional pleadings, under the existing conditions and circumstances, did not result in the commencement, or for that matter the trial, of a new and independent action.
Appellant also contends the trial court erred in failing to dismiss the case upon Jeffery’s failure to appear and prosecute the proceeding which she had commenced in probate court. We believe the record discloses she made a voluntary appearance in district court through her attorney but it must be conceded that through the same source the court was advised she did not desire to introduce any evidence and, to that extent, as appellant points out, was no longer pressing the proceeding she had instituted in the probate court. The short and simple answer to appellant’s position on this point is that at the time of the ruling on this motion the district court was concerned with the disposition of appellant’s appeal from the probate court’s judgment and, under the statute (G. S. 1949, 59-2408), was required to hear and determine such appeal.
Coming closer to the merits of the action appellant next contends that the heretofore quoted findings of fact of the trial court are not supported by the evidence. This contention must, of course, be determined in the light of the rule, established by this court in a long and unbroken line of decisions, that where a trial court makes findings of fact our only function on appeal is to ascertain whether there is substantial competent evidence to support the findings as made, and not whether some evidence appears in the record which would have supported contrary findings had such court seen fit to make them. For a few of our more recent decisions where this rule is discussed, applied and adhered to see In re Estate of Johnson, 176 Kan. 339, 270 P. 2d 293; In re Estate of Davis, 175 Kan. 107, 110, 259 P. 2d 211; In re Estate of Jones, 174 Kan. 506, 514, 257 P. 2d 116; In re Estate of Johannes, 173 Kan. 298, 245 P. 2d 979; Shotzman v. Ward, 172 Kan. 272, 279, 239 P. 2d 935; Bradbury v. Wise, 167 Kan. 737, 208 P. 2d 209. Numerous decisions of like import will be found upon reference to West’s Kansas Digest, Appeal & Error, §§1010 (1), 1011 (1); Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, §§ 507, 508.
Nothing would be gained by detailed reference to all the testimony of record. It suffices to say that we have examined all evidence appearing in the abstract and in the counter abstract and after a careful analysis of what is to be there found, particularly that set forth at length in the counter abstract, we have become convinced a conclusion the trial court’s findings of fact 1 to 4, inch, as set forth in the journal entry and heretofore quoted, are supported by substantial competent evidence is inescapable. The result, under the rule to which we have last referred, is that such findings must be regarded as conclusive and will not be disturbed on appellate review even though, as appellant points out, there is evidence which, if the trial court in weighing the testimony had given it credence, might have warranted contrary factual findings.
Finally appellant contends that under our statute neither the probate nor the district court had power under the provisions of G. S. 1949, 59-1711, relating to all types of estates, to remove him for the reasons set forth in the findings, which for present purposes can be summarized as based on grounds (1) that appellant’s continuance as guardian of the person and estate of Osborn would be detrimental to the health, mental condition and general welfare of such incompetent and would be a threat to the public peace and order and (2) that it would be to the best interests of such incompetent that appellant be removed as guardian of his person and estate. Assuming, arguendo, that 59-1711, supra, providing that a fiduciary may be removed whenever he becomes insane or otherwise incapable of performing the duties of his trust, is tire only statute authorizing the removal of a guardian, we think our own decisions, and a well-known authority on Kansas probate law, preclude the upholding of appellant’s position. See Achenbach v. Baker, 151 Kan. 827, 101 P. 2d 937, where, in approving the removal of a tes tamentary trustee based on a finding his removal was for the best interest of the beneficiaries, this court held:
“The record is examined in an action wherein a trustee of a testamentary trust was removed for cause, and it is held that the finding of the court that his removal was for the best interest of the beneficiaries was supported by substantial, competent testimony and will not be disturbed.” (Syl. ¶ 3.)
And see, also, Pedroja v. Pedroja, 152 Kan. 82, 102 P. 2d 1012, where this court approved the action of the.trial court in removing a testamentary trustee and appointing a new trustee, based on findings that in the interest of harmony and efficient management of the trust the plaintiff trustee should be removed and a new trustee appointed. And see 2 Bartlett Kansas Probate Law and Practice (Rev. Ed.) p. 498 § 989 where, with specific reference to the force and effect to be given the same section of the statute, it is said:
“The statute relating to the removal of fiduciaries gives a very broad discretion to the court, evidently intending not to define or limit the disabilities which should be the cause of removal, but to leave room for the application of the power to all causes which may occur to render the execution of a will, or the administration of an estate, perplexed or difficult. . . . But when friction exists and probably will continue to exist between the fiduciary and the beneficiaries of the trust, removal of the fiduciary and appointment of a new fiduciary may be proper in the interest of harmony and efficient management of the trust. Incidental to the court’s paramount duty to see that trust estates are properly managed is its power to remove fiduciaries for cause.
In leaving the point now under consideration it should perhaps be stated that even if 59-1711, supra, had not been construed as above indicated we would have no difficulty in concluding that there are other provisions of the probate code which must be regarded as granting the probate court in the first instance and on appeal the district court power to remove guardians of incompetents for good and sufficient cause. We refer to G. S. 1949, 59-301 (6), providing that probate courts shall have power “to appoint and remove guardians for minors and incompetent persons, to make all necessary orders relating to their estates, etc.” And G. S. 1949, 59-301 (12), providing that such courts “shall have and exercise such equitable powers as may be necessary and proper fully to hear and determine any matter properly before such courts.” The sections of the statute last mentioned are so clear and understandable we do not believe they require citation of authorities tending to support the views just expressed respecting the import to be given their terms; But see 39 C. J. S., Guardian and Ward, 65, 73 §§44, 46 j; 25 Am. Jur., Guardian and Ward, 39 §56; Woerner, American Law of Guardianship, 113, 503 §§ 36, 150; Taylor, Law of Guardian and Ward, 156, 157; 5 Bancroft’s Probate Practice (2d Ed.) 413 § 1439, clearly demonstrating their soundness and an additional conclusion that the best interests of the ward constitute good and sufficient cause for the removal of the guardian.
Contentions made by appellant regarding error in the overruling of his motion for a new trial are the same as those heretofore considered, discussed and determined, hence they require no further attention.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover damages for wrongful death resulting from a pedestrian being struck by a motor vehicle while attempting to cross a public highway. The plaintiff, who was the duly qualified and acting representative of the decedent’s estate, recovered and the defendant appeals.
The pleadings are not complicated and on careful examination it appears no meritorious claim is raised by either of the parties respecting their sufficiency. For that reason we shall not detail their allegations and all that need be said for the moment respecting them is that the petition charges negligence on the part of the defendant was the proximate cause of the accident, while the answer alleges that such accident and the death of the decedent was not due to negligence on the part of defendant but was caused by and resulted from the decedent’s own acts of contributory negligence.
The cause was tried by a jury on issues joined as above indicated. During the course of the trial defendant demurred to plaintiff’s evidence on grounds it failed to establish a cause of action against him or show negligence on his part was the proximate cause of the accident and disclosed decedent’s own contributory negligence was the proximate cause of his injury and subsequent death. Upon the overruling of this demurrer defendant adduced his evidence. Subsequently the cause was submitted to the jury which in due time returned its general verdict in favor of plaintiff in the sum of $7,000 along with its answers to ten submitted special questions. Thereafter defendant filed a motion for judgment notwithstanding the verdict; a motion to set aside the jury’s special finding No. 6, acquitting the decedent of negligence; and a motion for a new trial. When these motions were overruled he gave notice of his appeal to this court where, under proper specifications of error, he is now entitled to review and disposition of all questions hereinafter discussed and considered.
The nature of the contentions advanced by appellant in support of his position the judgment should be reversed are such as to require a somewhat extended review of the record, which it is to be noted is limited and does not purport to contain every thing essential to a full and complete factual statement. However, it can be said that some of the evidence abstracted, particularly that relating to the factual situation as it existed immediately prior to the accident, is not in conflict and the facts to be gleaned therefrom can be stated thus.
On September 18, 1953, the decedent, Jesse Franklin Walker, a resident of Lakin, Kansas, was seventy-four years of age and lived with his wife in a house located just south of the Santa Fe railroad tracks on the east side of Main Street at the south edge of such city. Main Street, as the name indicates, is the principal business street of the city and runs north and south. Highway K-25 runs in the same direction and is also a part of such street. On the date in question and in the vicinity of the Walker home such highway, which was comparatively level, was covered with a blacktop slab, twenty-eight feet in width. At least eight to ten inches of each edge of such slab was covered with sand.
Sometime between 6:30 and 7:00 p. m., on the evening of September 18 the appellant was driving his Dodge pickup truck in a northerly direction on Highway K-25 in the city of Lakin. At that hour the street lights were on and the headlights of the vehicle appellant was operating were lighted, although there was still a little light from the sun. At or about the same time Mr. Walker who had previously left his house to obtain some milk from across the street had procured such milk and was returning to his home. In doing so he attempted to cross the street and highway from west to east, between intersections, in the middle of the block in which his house was located. This attempt proved to be unsuccessful due to the fact that when he had reached a point some ten to twelve feet east of the center line of the highway and approximately thirty-five feet north of the driveway leading from his home to the highway, he was struck by appellant’s oncoming automobile, thereby sustaining fatal injuries which resulted in almost if not instant death.
Other facts, to be regarded as established because based on unchallenged findings, are to be found in the special questions submitted and the answers made thereto by the jury. Omitting challenged Finding No. 6 and the question on which it is based such questions and answers read:
“1. At what speed do you find that the defendant, Theodore Gerritzen, was driving immediately prior to striking deceased? 10 to 20 miles per hour.
“2. Were the lights of the Gerritzen vehicle lighted? Yes.
“3. Where with reference to the center of the highway was the point of impact between the Gerritzen vehicle and the deceased? From ten to twelve feet east of the center line of hiway.
“4. Did the decedent, Jesse Franklin Walker, see the Gerritzen vehicle prior to the time that it was so close .to him that he could not avoid being struck? Yes.
“5. If you have answered Question No. 4 in the affirmative, where was the decedent with reference to the center of the road when he first observed the Gerritzen vehicle? Fourteen feet or more west of center of road.
“7. If you have answered Question No. 6 in the affirmative, state what act or acts of negligence which the decedent was guilty of?
“8. Do you find that the defendant, Theodore Gerritzen, was guilty of any act of negligence which was the proximate cause of the injury to the decedent? Yes.
“9. If you have answered Question No. 8 in the affirmative, please state what negligence the defendant was guility of? Not observing the road properly.
“10. Did anything prevent the decedent from seeing the Gerritzen vehicle? No.”
From this point on the story is not so clear and, due to the state of the record, we have concluded pertinent details of the evidence supplementing the facts heretofore related must be based on our version of their import. As that is done it is well to note the only living eyewitnesses to the accident and the events immediately preceding it were the appellant himself and one other person, Dean Hoppas.
The record discloses appellant testified as a witness in his own behalf. However, since the abstract does not disclose any of his testimony and the counter abstract is limited to seven answers to as many questions, we are in no position to review his evidence and it is of little value for any purpose on appellate review. The most that can be said for it is that in the answers to which we have just referred he admitted in substance that he did not see the decedent at any time before the collision occurred; that there was nothing to distract or prevent him from seeing him that he knew of; that he had no independent recollection as to whether at the moment of the impact he was driving his truck with its right side wheels on the sand which covered the east edge of the blacktop; and that it would not have been too unusual if he had been doing so for the reason that was more or less customary because the sand encroaches on the highway.
The evidence of Dean Hoppas is abstracted and throws some light on facts not heretofore established. Touching such matters he testified in substance that he was a school teacher; that he entered Main street from an east and west street a little over a block south where the accident happened, at which time he was driving north on such street; that he saw appellant approaching from the south; that he was driving the truck at an ordinary speed within the speed limits; that he waited for appellant to pass before turning into the intersection and then pulled in behind him, heading north; that he then observed the truck and that it was being driven down the driver’s lane, the east lane of the blacktop portion of the highway; that he could see Mr. Walker and first saw him when he was on the shoulder, i. e., the west shoulder of the road, approaching such road, walking east; that at that moment appellant’s truck was south of decedent on the highway; that Mr. Walker continued to walk steadily across the road without changing his speed or the direction of his walking until he passed from his sight in front of the approaching truck; that he did not see the impact because the truck was between him and the deceased, and thought for a moment the latter had made it but learned differently when he came up to the scene of the accident; that as he recalled it there were no vehicles coming from the north at or just prior to the time the accident occurred. In connection with his testimony this witness was interrogated regarding distances and admitted that soon after the accident he had made a statement in which he said he was from 100 to 200 feet from the pickup truck when the accident happened. With respect to this statement and another question as to how far he was from Walker when the latter came on the highway he made the following statement:
“My depth perception is not what it should be and when Walker came on the highway I could not tell how far away he was. If there is an object out there and farther on another one, I have trouble telling the distance between the two objects and I look at them.”
Several witnesses, including the sheriff of the county, testified to the effect that appellant told them he did not see the decedent until just at the time he hit him.
Notwithstanding the testimony of witness Hoppas respecting the location of the truck on the highway just prior to the accident the jury had before it the testimony of a witness, one Perry L. Johnson, who, according to the counter abstract, made the following statements with regard to the same subject:
“You could backtrack from the pickup down in the sand. A tire track led directly from the driveway north to the back end of the pickup. The track went north and south and out just a little, like he had been farther over. The south end of the track was possibly in the sand about two and a half feet from the clean edge of the blacktop. I didn’t measure it.
“The truck was sitting probably eight to twelve inches on the road. . . .”
In conclusion it should be stated at this point that the record as presented discloses no evidence, hence we must assume there was none, respecting the following pertinent matters: (1) Where Hoppas was when he saw Walker, i. e., whether he saw such decedent while still on the east and west street or after he turned and reached the highway; (2) the distance appellant’s truck was from the point of the accident when the decedent was seen by Hoppas at the west shoulder of the highway; (3) whether decedent stopped or looked prior to starting across such highway; and (4) whether, after seeing appellant’s vehicle approaching on the highway, as the jury found, decedent failed thereafter to watch and observe such vehicle while attempting to traverse the highway. And last but not least it should be kept in mind that except for the fact the accident happened the record presents no real or concrete evi dence disclosing decedent failed to yield the right of way to appellant on the occasion in question.
Appellant’s first claim of error is founded on the premise the trial court erred in overruling the portion of his demurrer charging appellee’s evidence specifically shows that the decedent was guilty of contributory negligence as a matter of law. It is based in part upon provisions of G. S. 1949, 8-557, which read:
“(a) Every pedestrian crossing a roadway at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway. . , . (d) Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.”
When all his arguments are carefully analyzed it appears the gist of the first contention advanced by appellant in support of his position on the claim now under consideration is that under and by reason of the foregoing statute a person who enters upon and attempts to cross a highway where oncoming motor vehicles are approaching, and have been observed, does so at his peril and is guilty of negligence as a matter of law if, while on the roadway, he is struck by one of such vehicles. More specifically, based on this construction of the statute and as applied to the facts of the case at bar, appellant’s position is that appellee’s evidence shows contributory negligence as a matter of law because it discloses that after entering upon the roadway decedent failed to stop and permit the truck in question to pass in front of him before proceeding on across such roadway.
We are not disposed to here labor the numerous negligence cases cited by the parties in which it may be conceded something has been said or held that can be regarded as tending to support their respective positions on the point now under consideration. It suffices to say we think appellant’s contention with respect thereto was rejected by this court in Barker v. Seber, 154 Kan. 24, 114 P. 2d 791, to which we adhere, and therefore cannot be upheld.
Next it is argued the demurrer to the evidence should have been sustained because the evidence of record shows that the decedent failed to yield the right of way. Assuming that in view of provisions of the statute, heretofore quoted, a pedestrian who fails to yield to a vehicle having the right of way on a highway is negligent it does not follow appellant’s position on the point now under consideration can be upheld. Under the rule announced in the decision last above cited, and for that matter recognized in more recent decisions (See, e. g., Hultberg v. Phillippi, 167 Kan. 521, 206 P. 2d 1057, and Hultberg v. Phillippi, 169 Kan. 610, 220 P. 2d 208), before a pedestrian can be convicted of negligence in failing to yield the right of way to an oncoming vehicle it must first be established by the evidence that such vehicle was entitled to the right of way under the existing facts and circumstances.
The general rule, so well-established as to hardly require citation of our decisions supporting it, is that in ruling on a demurrer to the evidence the evidence and the inferences that may properly be drawn therefrom must be considered in the light most favorable to the party against whom the demurrer is directed, and if the evidence and the inferences viewed in that manner are of such character that reasonable men in the exercise of fair and impartial judgment may reach different conclusions, the demurrer should be overruled and the issue submitted to the jury (West’s Kansas Digest, Negligence, § 136 [9] [10], Appeal & Error § 927 [5], and Trial §156 [2] [3]).
When the record, including facts shown and those not established by evidence as heretofore related, is reviewed in the light of the legal presumption that a deceased person exercised due care for his own safety in the absence of evidence to the contrary and the well-established rule that negligence is never presumed but must be established by proof, we think such record presented a situation where reasonable minds might differ regarding the quéstions whether appellant’s vehicle had the right of way at the time of the involved accident or decedent Walker was required to yield the right of way at that time. It follows it was the province of the jury to determine those questions and the trial court did not err in overruling the demurrer.
Heretofore it has been stated that appellant moved to set aside the jury’s answer to special question 6. That question reads “Do you find that the decedent was guilty of any act of negligence which was a proximate cause of his injury?” The jury’s answer to such question was “No.” First it is argued this is a general finding in the nature of a conclusion and that since it conflicts with the specific findings it should be set aside. We are not told and therefore assume appellant’s position on this point is that the answers to questions 4 and 5, quoted early in this opinion, are inconsistent with the answer of which he now complains. Conceding the answer to such question is general in nature we find nothing so contradictory in the answers to questions 4 and 5 as to warrant a conclusion the trial court erred in overruling the motion to set aside the answer to question 6.
After a careful review of the entire record, the special findings and what has been heretofore stated and held we find no merit in appellant’s claim the trial court erred in overruling his motion for judgment notwithstanding the verdict, based on grounds the special findings conflict with the general verdict and show the decedent was guilty of contributory negligence as a matter of law. We reach the same conclusion respecting another claim of error to the effect the record does not disclose negligence on his part which was the proximate cause of the accident. And still another, not seriously urged, that the trial court erred in overruling his demurrer to the petition.
Finally appellant complains that the trial court erred in overruling his motion for a new trial. This claim is based entirely upon alleged errors in the giving of instruction 5 wherein the court set forth provisions of the statute heretofore quoted, gave certain definitions to be found in G. S. 1949, 8-501, and concluded with the following statement, which is the only portion of the instruction complained of:
“You are instructed that the term yield the right of way’ as used in G. S. 1949, 8-557, subsection (a), means to give way so that vehicles upon the roadway shall have a reasonable opportunity to pass in safety, but it does not mean that a pedestrian give way completely and stay entirely outside the area of the roadway.”
Ordinarily when — as here — a number of instructions are given by the trial court and only one of such instructions is brought to this court we regard the record as insufficient to permit its review. Even so, it may be stated we have read and carefully analyzed the challenged portion of the instruction and see nothing so seriously wrong with it as to warrant or compel the granting of a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
There was originally a condemnation proceedings by the state highway commission under the authority of eminent domain. Marguerite I. Bourgeois, the appellant here, appealed to the district court from the award of the appraisers and later filed the instant appeal from the verdict, judgment and rulings of the trial court.
The record discloses the following facts in connection with the condemnation proceedings:
Appellant owned 11.21 acres of land in the vicinity of Turkey Creek in the northwest portion of Mission township, Johnson county, which were condemned by the state highway commission in order to extend U. S. highway 69; this land was Turkey Creek bottom land and was 1.1 miles north of Shawnee-Mission High School; there were two tracts of land involved; the commissioners appointed by the court awarded damages for 9.89 acres in the sum of $7,045.00 and for 1.32 acres in the sum of $455.00, which made a total award of $7,500.00 for the 11.21 acres.
As previously stated, an appeal from the above award was taken to the district court. Jury trial ensued and the verdict was for appellant in the sum of $8,500 for both tracts as a unit. Appellant moved for new trial, the motion was overruled, and this appeal followed.
There were nineteen specifications of error, the first fifteen of which were objections to the trial court’s rulings admitting or excluding evidence; No. 16 was objection to the trial court allowing the jury to view the premises after changes therein; No. 17 was that the trial court erred in overruling motion for new trial;. No. 18 was that jury members were guilty of misconduct, prejudicial to appellant, while viewing appellant’s premises; and No. 19 was another objection to the court’s ruling on evidence.
The property was zoned for residential purposes and was being used by appellant and her aged father as a home. All the land was tillable or usable for truck farming or gardening.
We shall first dispose of the question relating to the trial court’s exclusion of evidence on the part of appellant. The record does not disclose that evidence on this point was offered by the appellant on her motion for new trial and for that reason this contention cannot be considered on appeal to this court. G. S. 1949, 60-3004 controls where an appeal is taken from the overruling of a motion for new trial by the trial court. The material part of that statute is as follows:
“In all cases where the ground of the motion is error in the exclusion of evidence . . . such evidence shall be produced at the hearing of the motion by affidavit, deposition or oral testimony of the witnesses. . . .” (Our emphasis.)
In view of the above statute it is not necessary to cite the multitudinous list of opinions by this court substantiating and repeating the rule.
The next question pertained to the rulings of the trial court which limited the cross-examination by appellant of the witnesses offered by appellee on the trial. In order to make clear the justification for considering this question, it is necessary to set out some of the testimony adduced from experts which was offered by appellee and was accepted by the trial court.
Appellee’s first witness, Earl M. Maness, qualified as a real estate expert and set the monetary value of appellant’s property at $7,500.00 because he believed the most advantageous use of the property was for farming. He had not inquired into the zoning of the property. Plis testimony on cross-examination, in part, was:
“Q. I will ask you if they didn’t build right down in the creek banks in Prairie Village where it flooded for years? A. I didn’t.
“Q. Well, do you know whether the J. C. Nichols Company did, or other developments—
“The Court (Interrupting): I believe I will sustain an objection on that. It is a little remote.
“Q. I will ask you whether or not if you know what land is selling for along Southwest Boulevard?”
Objection was made to the last question. There was a distance of about four blocks involved and the trial court sustained the objection. The property involved in this appeal and the property along Southwest Boulevard were both in Mission township.
Appellee’s second witness, William L. Embree, qualified as a real estate expert. He also valued appellant’s property at $7,500.00. He believed its highest and best use was for agricultural purposes. He testified that the property was incapable of normal loaning support. On cross-examination Embree testified that he had appraised the Murray tract at $3,350.00, the Beil tract of 7.41 acres at $14,107.00, and the McLeod tract of 2.4 acres located some 300 yards to the north at $2,000.00. The court sustained an objection to the following question because it was too remote,
“Isn’t it a fact that over in Prairie Village they built on creeks just as low as this . . .,”
and the court commented,
“To get in to showing it was a comparable situation would be too lengthy.”
Appellee’s third witness, Harry A. Wilson, who also qualified as a real estate expert, determined the highest and best use of the land was for residential and agricultural purposes, and he set the value at $7,500.00. His cross-examination included the following:
“Q. You heard his testimony that he said his [Embree’s] value was $7,500.00? A. Yes, I heard that, $7,500.00.
“Q. And you heard Mr. Maness say that in his opinion it was worth $7,500.00? A. Yes, sir.
“Q. And all three of you witnesses here come up with the same figure, $7,500.00? A. May I tell you why?
“Q. Just answer the question. A. Because we had to come up with the same figure, not necessarily $7,500.00, but it had to be one figure.
“Q. And one of you out of the three couldn’t have disagreed. Is that right?
“The Court: I think I will sustain an objection on that.
“Q. Have you been engaged in business down in around this area where this property is located? A. Yes, sir. I own 40 acres immediately to the east of that on Nall Avenue, almost due east, at a point just west of Nall.
“How far would that be from this property? A. Well, the distance from Nall over there would probably be three-quarters of a mile, or probably a mile.
“Q. Is it improved or unimproved? A. Unimproved.
“Q. What would you place the value of that property at? A. Around $400,.00 an acre.
“Q. . . . Would you sell it for that?”
The court sustained an objection, saying, “I don’t believe it is proper either. Maybe the property isn’t for sale at all. Maybe he doesn’t want to sell it. Maybe he wants to divide it. So that wouldn’t be a proper question.” The cross-examination continued.
“Q. Now, in arriving at your value of this property, how much consideration did you give to the improvements?”
There was an objection on the ground that land and improvements cannot be vested into separate units and the court said,
He can state whether it was one of the major portions of the consideration. He can’t divide it.
“Q. . . . What valuation would you put on this property as of May 4th of this year, if there were no improvements on it?”
An objection to the last question was sustained.
Appellant contended appellee was making so much out of the condition of the improvements that she wanted to find out the value with no improvements. The court stated that was not the question for the court and jury; the question was the market value of the property as it then existed; the improvements and location could be taken into consideration, but the property would have to be considered as a unit.
The cross-examination of Wilson continued.
“Q. Have you ever seen it [the property] flooded? A. No, but to the east of this on Antioch, on two properties that we had sales for, we were unable to complete the sales because we had to make an investigation for the loan companies to see if it flooded, and we went to the United States Army records and found that ... it has flooded at least three times in the 25 years.
“Q. You are acquainted with other developments in Mission Township, along creeks, are you not, along Brush Creek? A. Yes.
“Q. And Rock Creek? A. Yes.
“Q. And those areas flood just the same as Turkey Creek, do they not?”
The -court sustained an objection by appellee to the above, saying, “We wont get in to Brush Creek and Rock Creek.”
These three witnesses were placed on the stand by appellee as experts. They were well qualified to state their opinions, and they all testified as to the value of appellant’s property. (Mai v. City of Garden City, 177 Kan. 179, 277 P. 2d 636.) This was proper but appellant had the right on cross-examination to test the credibility of the testimony of the witnesses by asking qualifying questions as to the extent of the knowledge on the part of each witness, and as to each and every element that such witness took into consideration in arriving at his opinion of the value of the property. That part of the record set out herein shows appellant was not afforded an opportunity to cross-examine appellee’s witnesses and she was prejudiced thereby in the trial. On cross-examination great latitude is necessarily indulged in order that the intelligence of the witness, his powers of discernment and his capacity to form a correct judgment may be submitted to the jury so it may have an opportunity for determining the value of his testimony. (State v. Reddick, 7 Kan. 143; K. C. & T. Rly. Co. v. Vickroy, 46 Kan. 248, 26 Pac. 698; C. K. & N. Rly. Co. v. Stewart, 47 Kan. 704, 707, 28 Pac. 1017; State v. Buck, 88 Kan. 114, 128, 127 Pac. 631; 58 Am. Jur., Witnesses, § 847.)
If this were not the rule in condemnation proceedings there would be no reason for providing for appeal from an award by commissioners because their conclusion, standing alone, would be final even though great injustices might result.
The trial court erred in unduly limiting the cross-examination by appellant and we think this was to her prejudice to the extent that she was not afforded a fair trial. The judgment, therefore, should be reversed.
We have not overlooked other contentions of the appellant, but we do not deem it necessary to cover these phases of the appeal in view of what we have said on the question that the trial court unduly limited the cross-examination.
The judgment is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This was a taxpayers’ injunction action. The appeal is from an order sustaining defendants’ demurrers to the plaintiffs’ amended petition.
Appellant taxpayers will be hereinafter referred to as plaintiffs, and appellee school district and other officials will be referred to as defendants.
The petition, as amended, omitting formal parts, alleged in substance that plaintiffs were resident taxpayers and qualified voters in the' territory comprising common-school district No. 34 in Neosho county, and that their property was subject to assessment and taxation for the benefit of that district; that prior to September 8, 1954, the board of common-school district No. 34 called a special meeting of the qualified voters of the district to be held at the schoolhouse on September 20, at 8 o’clock, for the purpose stated in the posted notice of the meeting. The notice read:
“A special meeting of the voters of School Dist. No. 34 County of Neosho, and State of Kansas, will be held at Doane-Dodd School House on the 20 day of September, 1954, at 8 o’clock, P. M. for the purpose of annexing or consolidating with one or more districts, enrolling in another district or reopening District No. 34 . . .”
Pursuant to the notice, a meeting of the qualified voters of the district was held, and the action taken at the meeting was set forth in the minutes as follows:
“Motion made by Gilford McClure that Dist. No. 34 annex to District 105 and Dist. No. 34 assumes its share of the bonded indebtedness.
“Seconded by Virgil Hines. 42 patrons of District present. Motion carried. 23 for. 19 against. . . .”
In voting on the mentioned motion, a blank slip of paper was submitted to each of the qualified voters in attendance. Each qualified elector at the meeting wrote on the blank piece of paper received by him either the word “yes” or the word “no”. The votes were collected and tabulated, resulting in 23 “yes” votes and 19 “no” votes, and the motion was declared carried. Copies of the proposition and the vote were transmitted to defendant school board of common-school district No. 105, and to the defendant Nelle H. Stevens, as county superintendent of public instruction in Neosho county. Within twenty days after the special meeting, common-school district No. 105, by action of the board, approved the proposition of annexation of school district No. 34 to district No. 105, and the assumption of its share of the bonded indebtedness of district No. 105. Notice of such approval of the annexation and assumption of bonded indebtedness had been given as provided by law.
Plaintiff further alleged that the action taken at the special meeting of district No. 34, on September 20, in voting to assume its share of the bonded indebtedness of common-school district No. 105, was illegal and void for the reason that the notice of the special meeting did not specify as an object of the meeting the proposition of the assumption by district No. 34 of its share of the bonded indebtedness of any common-school district to which it might be determined by said meeting to be annexed.
It was further alleged that if the action of district No. 34 in assuming its share of the bonded indebtedness of district No. 105 was permitted to stand, all the property in district No. 34 would be subject to taxation for the payment of such existing bonded indebtedness, and interest thereon. By way of relief, plaintiffs sought an injunction against the defendants enjoining them and their successors from collecting any tax from the property of the plaintiffs within the territory of what was district No. 34, for the payment of the existing bonded indebtedness, and interest of district No. 105.
Defendants demurred to the petition, as amended, on the ground it failed to state facts sufficient to constitute a cause of action, and that the plaintiffs had no legal capacity to sue. The trial court sustained the demurrer, generally, from which plaintiffs appeal. They do not seek to set aside the annexation of district No. 34 by district No. 105. They contend that the assumption of the bonded indebtedness of the annexing district was not included in the posted notice as one of the objects of the special meeting, nor on the ballot, and that the action on that matter at such meeting was void. At the outset we are confronted with defendants’ motion to dismiss the appeal on the ground that plaintiffs had no right to maintain the action. We will not dwell on this question. Assuming they had a right to maintain the action, they cannot prevail for the reasons hereinafter stated.
The determinative question is whether the notice of the special meeting and the ballot met the requirements of the statutes.
The answer requires an examination of the pertinent statutes, G. S. 1955 Supp., ch. 72, art. 4, and art. 8. All sections hereinafter referred to will be found therein, unless otherwise indicated.
Section 72-402 provides that in common-school districts, special meetings may be called at any time by the board. Section 72-403 provides that the board shall give ten days’ notice previous to any special meeting by posting notices specifying the object for which the meeting is called. The section provides, in such pertinent part:
“. . . All notices shall include the time and place of such meeting. Every notice of a special meeting shall specify the object for which the meeting is called, and no business shall be acted upon that was not specified in said notice. In the event that a proposition to consolidate with or to be annexed to another common-school district is to be voted on at an annual or special meeting, the notice for such meeting shall state the proposition to be voted on.”
The notice in the instant case clearly meets the requirements of this statute. The notice specified the object of the meeting, i. e., annexation, and the proposition to be voted on, i. e., whether district No. 34 should be reopened or annexed to another common-school district. It sufficiently informed the electorate of the proposition to be voted on. None of the taxpayers were misled by the notice, and there is no contention to the effect that they were misled. Inasmuch as the notice provided for annexation, the proceeding for such is controlled by section 72-829 of the same act, which provides:
“A common-school district may be disorganized and annexed to another common-school district or districts in the manner herein provided. An election shall be held in the district to be disorganized and annexed for the purpose of voting on a proposition for such disorganization and annexation, which proposition may provide that such annexed territory will assume its proportionate share of any existing bonded indebtedness of the annexing district or districts. The vote at such election shall be by ballot and if the proposition for disorganization and annexation shall carry, the clerk of the district board shall transmit copies of the proposition and the vote thereon to the clerk of the board of the annexing district or districts and to the county superintendent, or county superintendents, . . . Within twenty (20) days after receipt thereof, the board of the annexing district or districts, shall by resolution approve or reject such proposition of annexation, and tire clerk of such board or boards shall transmit a copy of such resolution to the clerk of the district making the proposition of annexation and to the county superintendent, or superintendents, having jurisdiction over such districts: . . .”
The foregoing statute definitely states the manner in which a common-school district may annex to another; that an election shall be held for the purpose of voting on such annexation, and whether the annexed territory will assume its proportionate share of the existing bonded indebtedness of the annexing district, and that the vote at such election shall be by ballot. The notice of the meeting specified that its purpose was annexation. Inherent in that purpose was the question whether the district should assume its proportionate share of the existing bonded indebtedness of the annexing district.
The vote was had by ballot, by passing blank sheets of paper to each taxpayer to write thereon the word “yes” if he was for the motion, or “no” if he was against it. They were duly collected, counted, and the motion declared carried, as aforementioned.
G. S. 1949, 72-903, applicable to consolidation and annexation, provided that the vote should be by ballot which should read, “for consolidation” or “against consolidation”. The fact that the legislature in its act of 1951, ch. 396, repealed that section and enacted G. S. 1955 Supp., 72-829, previously quoted, is an indication that the vote at such election should be merely by ballot, and eliminated the previous requirement of a printed ballot.
In a somewhat analogous case of Brown v. Summerfield Rural High School Dist. No. 8, 175 Kan. 310, 262 P. 2d 943, we held that election booths were not required at a school election, and the reasons for such holding were discussed at length and will not be reiterated here.
There is nothing in the mentioned statute which requires the ballot to be printed or that the proposition be stated on the ballot, nor does the applicable statute say that the election shall be held in accordance wih the general election laws. The proposition was clearly stated in the motion, and the only ballot necessary was a written “yes” or “no” vote. The cases cited by plaintiffs are of no help as they involve statutes either repealed or entirely different from those involved in the instant case. Most, if not all, of the cases relied on by plaintiffs deal with the voting of bond issues. The instant case is a matter of annexation specifically provided for by chapter 72, article 8.
In view of what has been said, the judgment of the trial court in sustaining defendants’ demurrers to the plaintiffs’ petition, as amended, is affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of the administration of a decedent’s estate, and the underlying question is concerned with a widow’s election.-
David S. Jones, a resident of Wichita, died on August 25, 1950, leaving as his heirs-at-law his widow, Ruth, and two grandchildren, James and' Barbara, they being children of a prior deceased son.
He left a last will and testament which bequeathed and devised his entire estate to his widow, and she was designated as executrix thereof to serve without bond. She did not consent during his lifetime to the provisions of the will.
On August 31, 1950, the widow filed a petition for the probate of the will and for her appointment as executrix.
On September 29, 1950, the will was admitted to probate and she was appointed executrix. On October 3, 1950, she filed her oath and letters testamentary were duly issued to her. On October 5, 1950, she signed and acknowledged her “election to take under will”. She contends that this election was filed on that date, whereas the grandchildren- contend that it was not in fact filed until August 29,1951.
On October 7, 1950, she first published her notice of appointment as executrix.
On January 17, 1951, she filed a petition for additional time in which to file an inventory of the estate, and on the same date the probate court granted an extension of six months.
On January 26, 1951, she filed a petition for an order transferring to her the title of her deceased husband’s automobile. This petition was allowed on the same date.
On September 5, 1951, the original inventory and appraisement was filed, and on September 24, 1951, upon application of the appraisers and order of the court, the inventory and appraisement was amended.
On August 24,1953, a supplemental inventory was filed.
At no time subsequent to the filing of the inventory and appraisement, or the amendment and supplement thereto, did the widow make application to set aside her election to take under the will.
On November 2, 1953, the grandchildren filed a petition to set aside the widow’s election on the ground that it was not .filed within six months after the will was admitted to probate. Following a hearing thereon, the probate court found that her election, which was dated and subscribed to on October 5, 1950, was .not filed on that date and was in fact not filed within six months from the date the will was admitted to probate, and ordered such election set aside and that the grandchildren, as heirs-at-law of decedent, were each entitled to an undivided one-fourth interest in the estate.
The widow appealed to the district court, and after a hearing thereon that court upheld the decision of the probate court and specifically found that her purported election to take under the will, dated October 5, 1950, was not filed within six months following the probate of the will, and that no other election in writing to take under the will was filed by her within such six-months period. Judgment was rendered to the effect that the estate should be distributed under the laws of intestate succession — in other words, one-half to the widow, together with statutory allowance?, and one-fourth to each of-the grandchildren.
From this judgment the widow has appealed to this court.- ■
The statutes involved are as follow:
G. S. 1949, 59-603, reads:
“The surviving spouse, who shall not have consented in the lifetime of the testator to the testator’s will as provided by law, may make an election whether he will take under the will or take what he is entitled to by the laws of intestate succession; but he shall not be entitled to both. If the survivor fails to consent or to make an election, he shall take by the laws of intestate succession.”
G. S. 1949, 59-2233, reads:
“When a will is admitted to probate the court shall forthwith transmit to the surviving spouse a certified copy thereof. If such spouse has not consented to the will, as provided by law, such spouse shall be deemed to have renounced and refused to elect to take under the will unless he shall have filed in the probate court an instrument in writing to accept the provisions of such will within six months after probate of the will. If the said spouse files an election before the appraisement of the estate is filed, the said election shall be set aside upon application of the spouse made within thirty days after the filing of the appraisement. For good cause shown, the court may permit an election within such further time as the court may determine, if an application therefor is made within said period of six months.”
In passing, it should be mentioned that in 1951 the legislature amended each of the above statutes, and, as amended, they now appear as G. S. 1955 Supp., 59-603 and 59-2233. The parties concede, however, that we are concerned only with the sections as they appear in G. S. 1949, above quoted.
On the question as to when the widow’s election to take under the will was actually filed in the probate court, the record before us contains numerous exhibits and copies of probate court records, together with the testimony of a long-time probate court employee and other witnesses. No useful purpose would be served by detailing the evidence in this opinion. It has been examined and it is sufficient to say that the trial court’s finding that no election was filed within six months from the date of probate of the will is fully supported. In fact, it appears to have been filed on August 29, 1951, eleven months after the probate of the will.
This fact having been established, the matter therefore narrows down to the question whether the widow is entitled to take the entire estate, as the will provides, or whether it is to be distributed under the laws of intestate succession, as decreed by the trial court.
Despite the fact the two statutes in question are plain and unambiguous and fully warrant the trial court’s judgment, the widow makes several contentions which will be noted.
It is urged that records of courts are presumed to be correct; that there was evidence tending to establish that the election in question was filed on October 5, 1950, and that clear and convincing proof is required to overthrow the presumption of correctness of public records. Conceding the rule as stated to be correct, the trouble with this argument is that on this question of fact the trial court found against the widow on evidence which was most clear and convincing. In fact, she stood on her demurrer to the evidence of the grandchildren and offered nothing in support of her contention that the election was filed within the six-months period.
Next, it is argued that the statutes relating to the filing of an election were enacted for the benefit of a widow and that substantial compliance with their provisions is sufficient. Conceding that the statutes were enacted for the purpose as stated, the fact remains that 59-2233 requires that such election consist of an instrument in writing to accept the provisions of a will and that it be filed within six months after the probate thereof. The trial court found that no such instrument in writing was filed within the required period.
It is contended that from the very fact the widow petitioned for probate of the will, that she accepted the appointment therein contained as executrix, and proceeded to administer the estate in accordance with the provisions of the will which left everything to her, conclusively establishes that she sufficiently elected to accept the will as written. One trouble with this argument is, as heretofore stated, the statute requires that an election consist of an instrument in writing rather than circumstances from which an election to accept can be inferred. She also makes a point of the fact that on January 26, 1951, within the six-months period, she filed her petition for an order transferring to her the title to her deceased husband’s automobile, and argues that as it was included among decedent’s property, all of which was bequeathed and devised to her, she thus recognized the will and accepted its provisions. In so contending she overlooks the fact that under G. S. 1949, 59-403, she was entitled to the automobile as a part of her widow’s allowance, irrespective of the terms of the will.
It is next contended that even though the election was not filed until August 29, 1951, it still was within time inasmuch as the inventory was not filed until September 5, 1951; that an election is not required prior to the filing of an inventory, and that inasmuch as she did not file an application to set aside such election within thirty days after the inventory and appraisement was filed, her election, even though not filed until August 29, 1951, still stands. The fallacy of this argument lies in the fact the language of the statute (59-2233) pertaining to the inventory and appraisement does not in any manner extend the time in which an election must be filed. It simply relates to a situation where, if an election is filed within the six-months period, as the statute plainly requires, and the appraisement is filed at a later date, then a spouse has a right to have the election set aside if application to do so is made within thirty days after the appraisement is filed. The purpose of such provision is obvious, that is, after the appraisement is filed, a surviving spouse is given the opportunity to be relieved of an election theretofore made, but the statute still requires that the election be made within six months from the date of probate of the will, irrespective of when the inventory and appraisement is filed. In passing, it also should be stated that no application was made during the six-months period for an extension of time in which to file an election.
It also is argued that under the doctrine of implied election, the widow, by her conduct in the administration of the estate, should be deemed to have made a sufficient election. As has already been stated, the statute in question requires that an election to accept the provisions of a will consist of an instrument in writing. It is true the statute does not specify any particular form, but it is certain that such written instrument must state clearly the fact that the spouse accepts the provisions of the will. Here no such written instrument was filed within the six-months period, and her conduct in administering the estate did not supply the deficiency.
And finally, it is contended that where, as here, a will leaves the entire estate to a surviving spouse it is presumed that such spouse desires to accept the provisions of the will and that no election is required. In other words, the widow, in effect, asks this court to hold that each of the two statutes in question contains an additional provision to the effect that no language in it shall be construed to apply to a will which leaves the entire estate of a deceased to the surviving spouse, and that in such event no consent or election to take under the will is required. This we cannot do. It has been held many times that courts should not judicially legislate so as to broaden the plain and unambiguous wording of a statute. Where language is clear and unambiguous no room is left for judicial interpretation. Neither of the statutes in question contains any provision exempting a will which leaves the entire estate to a sur viving spouse. It may be that by the amendments made in 1951 the legislature had in mind such a situation as is here presented, but we must take the former statutes as we find them.
Under the statutes then existing (G. S. 1949, 59-603 and 59-2233) the widow, not having consented during her husband’s lifetime to his will, and not having filed a written election to accept the provisions of the will within six months from the date of probate thereof, inherited under the laws of intestate succession. The judgment of the trial court was correct and is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Jack Dehner Lee commenced a proceeding in the district court of Leavenworth county for a writ of habeas corpus to procure his release from the state penitentiary. As the result of a trial in that court he was. denied relief and has appealed to this court.
The record discloses that an information was filed in the district court of Sedgwick county charging that Jack D. Lee stole a camera and a set of Bausch and Lomb field glasses of the value of over $20. At his trial on May 16, 1955, defendant Lee was represented by counsel, and tried by a jury. Defendant rested his case on May 16th and the matter was continued until the following day. On the following day one of the jurors was sick and the cause was continued until May 24. On the last day the court instructed the jury, argument was had and the jury retired to deliberate upon its verdict and on the same day returned a verdict finding the defendant Lee guilty and recommending leniency. The trial court ordered the jury polled and each of the jurors then affirmed the verdict which the trial court accepted. Defendant was given two days in which to file a motion for a new trial and he did file such a motion. On the hearing of the motion on May 27, 1955, a new trial was denied, and the trial court then inquired if defendant knew of any legal reason why sentence should not be pronounced. The defendant gave no legal reason and the trial court then sentenced the defendant to the state penitentiary for a period of not more than five years. Defendant orally applied for a parole, and the trial court after listening to evidence and argument, denied the application.
Although defendant had six months from the date of his sentence or until November 27,1955, in which to appeal (G. S. 1949, 62-1724) he made no attempt to do so, but on September 20, 1955, commenced the present proceeding for a writ of habeas corpus in the Leavenworth county district court; On October 3, 1955, a hearing was had in that court as a result of which that court denied the writ.
In his motion for the writ the petitioner alleged the verdict against him was a “quotient” verdict; that the trial court abused its discretion in not allowing him to interrogate the jurors as to whether they had read any newspaper accounts of his trial during the one week recess; in allowing him only two days and not five days in which to file his. motion for a new trial (but see G. S. 1949, 62-1723); that the verdict was not sustained by sufficient evidence and was contrary to law and that the trial court erred in giving its instructions and in refusing -to give instructions requested.
We shall devote no time and space to any discussion of the above complaints. If there was error in any of the above matters, 'it occurred in the course of the prosecution, could have been and perhaps was set forth in the motion for a new trial, which is not included in the record before us, and when that motion was denied, the remedy was by appeal. A proceeding in habeas corpus is not a substitute for an appeal. See Strong v. Edmondson, 177 Kan. 247, 277 P. 2d 585, cert. denied, 349 U. S. 958, 99 L. Ed. 1281, 75 S. Ct. 888.
The judgment of the district court denying the writ of habeas corpus is affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover a commission for the sale of real estate. The plaintiff appeals from an adverse judgment.
The pleadings are not involved. For that reason all that need be said regarding them is that they join issue on the question whether the plaintiff, Christine A. Tischhauser, doing business as Tischhauser Realty, of Wichita, was entitled to recover a real estate broker’s commission from the defendant, Frank T. Little, who, on February 19, 1954, consummated a sale of his tourist court and/or motel, located in McPherson County and known as the Little Motel, to purchasers theretofore contacted by the plaintiff in her capacity as a real estate broker.
With issues joined as heretofore related the cause was tried by a jury which returned a general verdict for the defendant along with its answers to certain submitted special questions. Plaintiff then filed a motion to set aside some of the answers to the special questions, a motion for judgment non obstante and a motion for a new trial. These motions were all overruled by the trial court which then approved the verdict and rendered judgment against the plaintiff and in favor of the defendant for costs. This appeal, wherein the defendant failed to appear or defend the judgment, followed.
The first error assigned is that the court erred in permitting the appellee to introduce incompetent, irrelevant, immaterial and prejudicial evidence over appellant’s objection.
In support of her position with respect to the foregoing claim of error appellant points out, as we find the record presented discloses, that under issues joined by the pleadings as to whether appellant procured a buyer for the property in question as appellee’s agent; whether such persons purchased the property; and whether appellant was the procuring cause of the sale thereof, the trial court permitted the appellee, who had previously admitted having listed the property for sale long prior to its sale, to testify at length respecting the state of his health and financial condition at the time of the sale, over objections made to that evidence as heretofore indicated.
Under conditions and circumstances such as have been heretofore related we have little difficulty in concluding there was nothing in the evidence complained of which tended to prove or disprove the issues joined by the pleadings. Neither do we have trouble in concluding that its admission appears to have prejudically affected the substantial rights of the appellant and requires the granting of a new trial. Indeed for all we know, since he has made no appearance and has not attempted to defend the judgment, appellee may be conceding the trial court’s action in admitting such evidence was erroneous and compels that conclusion.
Numerous other errors are assigned as grounds for reversal of the judgment. One of these, to the effect it was error to overrule the motion for judgment non obstante, lacks merit and cannot be upheld. All others challenge the propriety of the ruling on the motion for a new trial and, even if they were to be sustained, could afford appellant no greater relief than that already granted; hence they will not be considered or discussed.
The judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action in replevin to recover possession of an automobile. The trial was had by a jury, which found for defendants. This appeal is from an order granting plaintiff a new trial and setting aside an answer to a special question.
The pleadings may be summarized as follows: The petition alleged that defendants (appellants) Marshall H. Latham and Bernice E. Latham are husband and wife; that they executed and delivered to plaintiff (appellee) the promissory note and chattel mortgage in question; that the chattel mortgage was duly recorded; that default had been made on the promissory note and chattel mortgage, and that defendants had failed to deliver possession of the automobile on demand. The prayer was for possession of the automobile described in the chattel mortgage, and if possession could not be had, for judgment against defendants upon the promissory note, and for damages for wrongful detention of the automobile.
The defendants filed separate pleadings. The answer and counterclaim of Bernice E. Latham specifically denied the execution of the promissory note and the chattel mortgage. It alleged her joint ownership of the automobile; that it was used by her husband as the head of their family in his business and for his means of livelihood and was exempt; that the chattel mortgage was void because she did not sign it and that plaintiff had no right or title to the automobile. Her counterclaim asked actual and exemplary damages for the illegal and malicious acts of plaintiff in taking and depriving her of the use of the automobile and for its return to her possession.
The answer and counterclaim of Marshall H. Latham was similar in purport to that of Bernice. He expressly denied the execution of the promissory note and the chattel mortgage. He alleged that he was the joint owner of the automobile with his wife; that it was used in his business and for the means of livelihood for himself and his family; that it was exempt personal property under the laws of Kansas; that his wife did not sign the alleged chattel mortgage and that pursuant to G. S. 1949, 58-312, the purported instrument was void. His counterclaim, like that of his wife, asked for actual and exemplary damages for the illegal and malicious acts of plaintiff in taking and depriving him of the use of the automobile in his business; for its return to his possession, and for the reasonable value of services he had rendered plaintiff, which were due and unpaid.
Plaintiff replied to the new matters alleged in the answer of each defendant. He denied that the automobile was exempt. He alleged that if Bernice did not actually execute and sign her own name to the promissory note and the chattel mortgage, they were nonetheless valid for the reason she authorized the execution of the chattel mortgage and that it was executed by her authorized agent and binding upon her as principal; that she had ratified its execution by her agent and was bound thereby; that the chattel mortgage was a purchase money mortgage and her signature was not essential to its validity; and, further alleged that Bernice was estopped from denying she executed and signed the promissory note and chattel mortgage by reason of her acts and conduct, which are not herein detailed.
A reply of similar import was filed to Marshall’s answer and counterclaim.
With the issues thus joined, the cause was tried by a jury.
At the close of plaintiff’s evidence, each defendant demurred. The demurrers were overruled. The defendants did not elect to stand on their demurrers, but introduced their evidence. The jury returned a general verdict for the defendants, and answered all special questions submitted by the court favorable to the contentions of the defendants.
Timely motions were filed by plaintiff to vacate and set aside the verdict rendered by the jury; to grant plaintiff a new trial, and to set aside tire jury’s answer to special question No. 7.
The trial court made the following memorandum order:
“Now on this 7th day of April, 1955, the Court determines that the motion of the plaintiif for a new trial in the above entitled matter should be and is hereby sustained, and further finds that the motion to set aside the answer to specific question No. 7 should be and the same is hereby sustained.
“The Court is dissatisfied with the verdict rendered on all of the evidence and pleadings presented.” (Emphasis supplied.)
For purposes hereinafter noted, defendants’ notice of appeal .is set forth herein, which reads:
“Take notice that the defendants, Marshall H. Latham and Bernice E. Latham, do and hereby appeal from the order rendered and made in the above-entitled action on the 7th day of April, 1955, said order sustaining plaintiff’s motion for a new trial and plaintiff’s motion to set aside the answer to special question No. 7.”
We shall take up defendants’ first specification of error. It is contended that the trial court erred when it overruled the demurrers at the close of plaintiff’s evidence. A short answer to this contention is that defendants did not appeal from the order overruling their demurrers, consequently, this point is not before us. The appeal is only from the order of the trial court of April 7, 1955, which sustained plaintiff’s motion for a new trial and set aside the jury’s answer to special question No. 7. No effort was made by defendants to amend their notice of appeal, as authorized by G. S. 1949, 60-3310, and thus broaden its scope to include the contention here made. This court has previously held that rulings on motions or demurrers, not included in the notice of appeal, are not subject to appellate review. In Baker v. Maguire’s, Inc., 176 Kan. 579, 580, 272 P. 2d 739, the court said:
“We are confronted with complaints on rulings as to matters which were the grounds for a motion for a new trial, but there is no appeal from that ruling, nor for that matter any appeal from any ruling made either during or subsequent to the trial. It has been held repeatedly that rulings on such motions not included in the notice of appeal are not subject to review. See e. g. In re Estate of Young, 169 Kan. 20, 217 P. 2d 269; Toklan Royalty Corp. v. Panhandle Eastern Pipe Line Co., 168 Kan. 259, 264, 212 P. 2d 348; Salt City B., L. & S. Ass’n v. Peterson, 145 Kan. 765, syl. No. 1, 67 P. 2d 564; Skaggs v. Callabresi, 145 Kan. 739, syl. No. 2, 67 P. 2d 566; Mundell v. Franse, 143 Kan. 139, 140, 53 P. 2d 811, and other cases cited in the above.”
See, also, Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 P. 2d 980.
Since the notice of appeal did not include the trial court’s ruling on the demurrers, it follows that defendants’ first specification of error presents nothing for appellate review.
In view of the conclusion just reached, it is sufficient to say defendants’ appeal is expressly limited to the single question of whether the trial court properly sustained plaintiff’s motion for a new trial. Defendants contend that error was committed in granting the motion because (a) plaintiff failed to make a submissible cause and defendants are entitled to judgment as a matter of law; (b) that the trial court abused its discretion in granting the new trial; and, (c) that the trial court acted arbitrarily arid capriciously and was influenced by prejudice and bias.
We find little merit in this contention. The trial court expressed as clearly and concisely as it could its dissatisfaction with the verdict of the jury when considered in the light of all the evidence and the pleadings in the case. Having expressed dissatisfaction with the verdict, the trial court could do no other than grant a new trial. The trial court has an important function to perform when the verdict is challenged by a motion for a new trial. On that motion the trial court declared its disapproval of the verdict. From the beginning it has been the rule that if a verdict rendered by a jury does not meet the approval of the trial court, no duty is more imperative than to set the verdict aside and grant a new trial. This rule has been adhered to without variableness or shadow of turning. It is well stated in Bishop v. Huffman, 175 Kan. 270, 274, 275, 262 P. 2d 948, wherein the court said:
“The result is, that under the confronting facts and circumstances of this case, the propriety of the ruling granting a new trial must be examined in the light of principles to which this court has universally adhered, i. e., that if a trial court is dissatisfied with a verdict it not only has the authority but it is its duty to set such verdict aside (See Schroeder v. Texas Co., 169 Kan. 607, 609, 219 P. 2d 1063, and decisions there cited); that an order of a trial court sustaining a motion for a new trial will not be reversed unless abuse of discretion is apparent (See Bateman v. Roller, 168 Kan. 111, 112, 211 P. 2d 440); and that the granting of a motion of such nature rests so much in the trial court’s sound discretion that its action with respect thereto will not be held to constitute reversible error on appellate review unless the party complaining thereof has clearly established error with respect to some pure, simple, and unmixed question of law (Bateman v. Roller, p. 113, supra; Schroeder v. Texas Co., p. 609, supra).”
This rule has been considered so frequently and it is so well understood that the citation of all of the authorities is unnecessary. A few of the Kansas reports where it was applied are: Richolson v. Freeman, 56 Kan. 463, 43 Pac. 772; Railway Co. v. McClure, 58 Kan. 109, 48 Pac. 566; Ireton v. Ireton, 62 Kan. 358, 63 Pac. 429; White v. Railway Co., 91 Kan. 526, 138 Pac. 589; Ball v. Collins, 100 Kan. 448, 165 Pac. 273; Sanders v. Bank Savings Life Ins. Co., 118 Kan. 120, 233 Pac. 1017; Kansas Wheat Growers Ass’n v. Rinkel, 126 Kan. 733, 271 Pac. 311; Ferguson v. Kansas City Public Service Co., 159 Kan. 520, 156 P. 2d 869; Raines v. Bendure, 166 Kan. 41, 199 P. 2d 456; and, Myers v. Wright, 167 Kan. 728, 208 P. 2d 589.
Many reasons may have existed in the mind of the trial court as to why it was dissatisfied with the jury’s verdict, but when it reached that conclusion, we cannot inquire about the result or the reasons for it. We conclude that the trial court did not abuse its discretion in granting the new trial; nor did it act arbitrarily or capriciously, nor was it influenced by prejudice and bias in doing so, nor are defendants entitled to judgment as a matter of law for the reason that the trial court had expressed complete dissatisfaction with the jury’s verdict.
One point remains, which will be briefly commented upon. The order of the trial court granting a new trial set aside the verdict and the answers to all the special questions. The case stands as it did before trial; there is no verdict, nor special questions. Our reports are replete with authorities to this effect, a few of which are: McCrum v. Corby, 15 Kan. 112; Cahn v. Tootle, 58 Kan. 260, 48 Pac. 919; Johnston v. Lanter, 92 Kan. 257, 139 Pac. 1031; Peoples Nat’l Bank v. Casey, 127 Kan. 581, 274 Pac. 286; Foust v. Mills, 128 Kan. 471, 278 Pac. 745; Lapo v. Neillieux, 139 Kan. 23, 29 P. 2d 1093; Commander-Larabee Milling Co. v. McBride, 152 Kan. 709, 107 P. 2d 668; and, Ferguson v. Kansas City Public Service Co., supra.
In view of the trial court’s express finding of dissatisfaction with the verdict rendered on the evidence and pleadings, it had no alternative but to grant the new trial.
The order granting the new trial is affirmed. | [
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The opinion of the court was delivered by
Smith, C. J.:
This is an action for damages for land alleged to have been taken by the defendant to clear an alleged natural watercourse through plaintiffs’ land, pursuant to the provisions of G. S. 1949, 24-401. Judgment was for plaintiffs. Defendant has appealed.
The amended petition alleged the ownership by them of a section of level farming land; that the drainage district on April 5, 1953, proceeded with the construction of the ditch through the section without acquiring it by dedication, gift, purchase or through eminent domain proceedings, and without any compensation to plaintiffs; the dimensions of the ditch were set out and amounted altogether to 15.4 acres, of which 6.31 were dry land, the reasonable value of which was $200 per acre, and of which 9.4 were irrigated with a crop of growing wheat thereon, the reasonable value of which land was $300 per acre; that the ditch cut across level valley land of the plaintiffs in such a manner as to isolate more than one half of their land from the balance of their farm land and farmstead, and in doing so isolated about 64 acres of irrigated land from their irrigation system and caused such 64 acres of irrigated land to be converted into dry land; that as a result the crop of wheat was damaged and they had suffered crop damage; that to use this isolated acreage even as a dry land farm it would require a bridge to transport farm machinery across the ditch and would result in continuous inconvenience and expense to them; that the ditch as constructed isolated approximately 239 acres of dry farm land from the balance of their land and in order to use this acreage it would require an additional bridge to transport farm machinery; that the ditch had isolated the pastureland located in the southeast corner from the feed lot, well and other improvements placed thereon, and as a result they would be required to move their improvements to the pasture land so that the pasture could be utilized and their cattle be cared for properly; that in connection with their diversified farming activities and the grazing of cattle on this land and as a result of the construction of this ditch and in order to use the land in the most productive manner they must construct approximately 2.6 miles of fence; that the actual construction of the ditch over and across their land would result in a substantial decrease in the value in that their remaining land had been and would be further damaged through erosion by wind blowing the waste material from the ditch over plaintiffs’ land and by water in the ditch eroding away the banks of the ditch and eating into plaintiffs’ remaining land; that thistles, grass, bindweed and other weeds and weed seeds have been and will continue to be carried in the ditch through or upon plaintiffs’ land, rendering it less valuable and less productive; that plaintiffs’ land will be subjected to increased flood hazard in time of high water as a result of water backing up in the ditch from the Arkansas River, located at the terminus of the ditch less than a mile away, joining with that water which will come down the ditch from the north; that the fair market value of their land prior to the taking of a part was $126,875 and the fair market value of their remaining land after the taking of a portion of the original farm was $90,587.50; that they had and would suffer damage and injury on account of the value of dry land taken $1,200; value of irrigated land taken $2,700; difference in value of their land not taken immediately before and immediately after the taking $36,287.50.
Judgment was asked for $40,187.50.
The defendant in its answer admitted the organization of the district and the ownership of the property by plaintiffs; denied that the land was level farming land and denied the rest of the petition. The answer then alleged there had existed for many years in the area now comprising the Second Drainage District of Finney County, a natural watercourse named White Woman Creek; an intermittent stream flowing water during periods of rainfall and a high undersurface water table, and running dry during periods in which rainfall was sparse; that when rainfall was less than normal the watercourse remained dry, running water intermittently and with periods elapsing between the periods when water ran in said watercourse; that it ran in a southeasterly direction from the northern part of the area now comprising the Second Drainage District of Finney County, Kansas, through the area to the southern part, emptying into the Arkansas River at a point located in the southern portion of the area; that during the periods when the watercourse did not run water the farmers and others owning and leasing land along the watercourse by cultivation, land leveling, dumping of dirt, debris and other means erased the banks of the watercourse, cultivated the channel thereof and converted its channel and banks into dry and irrigated farm land at various points along the watercourse and particularly in the southern portion thereof; that as a result of the elimination of the channel at various places, water which ordinarily would have flowed through it during periods of rainfall was caused to collect in lakes and ponds along portions of it at such points so as to cause lakes and ponds to exist, land to become swampy and unfit for cultivation, alkali deposits to accumulate and mosquitoes to breed in the stagnant water resulting therefrom; that although its banks and channel had been erased at various places during periods of rainfall, water flowing in it sought its way to the Arkansas River and in so doing followed the original channel, spreading out over adjacent lands; that during the years 1949 and 1950 rainfall occurred in the vicinity of the area and caused the lakes, ponds and swamps to increase in size and to render the area adjacent to be damaged and detrimental to the public health; that as a result of the damage caused by such water residents and owners of property located in the area, including plaintiff, Walter F. Wolf, met at various meetings to determine what course of action should be pursued to eliminate the damage created and to prevent its recurrence; that as a result of the meetings it was determined by Wolf and others that a drainage district should be formed to clear the channel of the watercourse and to build levees, drainage ditches and other works in connection therewith to eliminate the danger of overflow from the watercourse; that a petition for the formation of the district was signed by plaintiff Wolf and others, a copy of which was attached to the answer; that it was presented to and filed with the board of county commissioners on the 6th day of August, 1951, and notice given as provided by law; that on the 15th day of August a hearing was had before the county commissioners; that as a result of the hearing an order was issued by the board of county commissioners wherein the allegations contained in the petition were found to be true and an order was made under the provisions of G. S. 1949, 24-406, in which defendant was declared to be a body politic; that such order was conclusive and binding on all persons and all matters and things therein contained were res judicata as to the parties to this action and all other persons; that an election was held and directors were elected and bonds issued for the payment of the cost of die work; that the watercourse did flow through the lands of the plaintiffs but that plaintiffs and their predecessors at various times during dry years, by cultivation, land leveling, dumping of dirt and other means erased its banks; placed constructions therein and farmed the channel so that water normally flowing through it in plaintiffs’ lands was prevented from so flowing except during periods of high water, when the water flowed and spread out over plaintiffs’ lands in attempting to find its way to the Arkansas River; that defendant in its work of cleaning the channel and removing obstructions therefrom entered it as it flowed through plaintiffs’ land and deepened the channel thereof and removed dirt, debris and other obstructions placed therein and provided a channel for it to permit the flow of water through it; that the channel so provided assumed substantially the dimensions alleged in the petition; that in entering it as it ran through plaintiffs’ lands defendant did not take or appropriate any of plaintiffs’ lands or other property nor did it widen it over the original channel of the same; that under the provisions of G. S. 1949, 24-401, et seq., as amended, defendant had the duty, right and power to enter it and make such improvements and to accomplish the works performed without compensation to plaintiffs; that in all meetings referred to plaintiff Wolf acted for himself and for his wife, Myrtle, plaintiff, and he was the duly authorized and acting agent for her with reference to the disposition of plaintiffs’ land; that he signed the petition with full knowledge of its contents and the drainage district relied on their acquiescence and consent and that of others in the formation of the drainage district and defendant did not know that plaintiffs objected to the clearing of the watercourse until after the contract to commence the work had been let; that prior to the clearing of the channel through plaintiffs’ lands they, during the years of high water, were subjected to flooding and overflow of the watercourse and plaintiffs’ crops and other property were damaged; that the improvements made by defendant would prevent the flooding of plaintiffs’ land and crops and permit plaintiffs to farm the lands without flooding and overflow. The prayer was that plaintiffs take nothing by their action.
The petition for the organization of defendant drainage district, a copy of which was attached to the answer, described the property by metes and bounds and prayed it be incorporated as a drainage district under the corporate name of “The Second Drainage District of Finney County, Kansas.”
The order of the county commissioners after reciting facts, about which there is no dispute, found that the petitioner had acted in conformity with the statutes and that all allegations of the petition were true. It ordered the territory described in the petition and taxpayers and residents therein constitute a public corporation under the name “The Second Drainage District of Finney County, Kansas.” A board of directors was elected.
The plaintiffs in their reply alleged a general denial and denied specifically that Walter F. Wolf had at any time acted as the agent of his wife.
There was a somewhat lengthy pre-trial conference. After stating the allegations of the petition, counsel for plaintiff stated: “In brief, it is our position that this is just a taking of land, private property, for a public purpose without compensation, in violation of the Constitution of the United States, and in violation of the statutory law of the State of Kansas.” Counsel for defendant after referring to the allegations of the answer stated:
“We have alleged in our answer that these plaintiffs and all of them knew from the first inception of this thing exactly what was taking place. That they sat idly by and permitted all of these things to be done. In other words, we have alleged estoppel, among other things.”
Counsel for defendant further stated:
“I think the court — if the court will read the statute, 24-407 as amended, the court will find that the drainage district formed under the provisions of this act is given control, exclusive control of all natural watercourses in the district, and is given the power to clear the charnel of the watercourse, remove debris, build levees and to condemn obstacles which appear.”
There followed a somewhat lengthy discussion between counsel in which counsel for plaintiffs stated:
“We don’t think it is incumbent upon us to prove that there did or did not exist a natural watercourse somewhere in the district. We thing it is enough if we show there was no watercourse and that private property was taken along the path of the present ditch, and as a result these various plaintiffs were damaged.”
Counsel for plaintiffs stated they did not deem it material whether a watercourse existed because they expected to prove that if there ever was a watercourse it did not exist at any point where the ditch was constructed. The following colloquy occurred:
“Mr. Hopkins: . . .
“This Drainage District has not only the power, but it has the duty to take exclusive control of this watercourse, to clear the channel of the watercourse and to remove obstacles from it. To condemn and remove obstacles from it, is what the statute says. In so doing they are not taking any property of the landowner.
“Mr. Fisher: If they stay in the watercourse.
“Mr. Hopkins: If they take any property in addition to the watercourse, they must pay for it. I think that the plaintiff is in agreement on that point, Your Honor.
“The Court: I wondered how badly off I am on the law.
“Mr. Fisher: Going further, the sole issue in this case, as we see it, is whether or not there was a natural watercourse along the path of the ditch though [sic] these plaintiffs’ farms, and if there wasn’t, then I think you will admit you have made a channel through there.
“Mr. Hopkins: Certainly. There is no question about that.”
In a pre-trial order the trial court held:
“Apparently, the parties are not in agreement as to the burden of proof. Again I am handicapped by lack of the pleadings, but it would seem that inasmuch as the plaintiffs are claiming damages for land taken, and having so shown, the burden shifts to the defendant to show otherwise.
“On page 56 of the transcript, the court is again asked to rule on the effect of the order of the board of county commissioners as to whether such order in finding that a natural watercourse ran through the lands of these plaintiffs is binding and conclusive on the plaintiffs as to the existence of such watercourse. Apparently, plaintiffs have admitted that such watercourse did run through their lands, only contesting the location of the channel itself; but the petition for the organization of the district and the orders made pursuant thereto as provided by G. S. 24-406 will be held to be conclusive on all persons. The court has not seen either of these papers.
“The plaintiffs are not estopped from claiming damages for loss of land or for damages to remaining land, irrespective of whether they had or did not have knowledge of the plans of the defendant for the construction of the waterway, or as to when -any such plans were made by the defendant, or what the plans provided. The corporation had the power to go upon the lands and to do the things authorized by G. S. Supp. 24-407 and plaintiffs were powerless to interfere with the defendant’s actions.
“Again let me say, in the hope that it will limit and clarify the issues, that my present view of the law is that it makes little difference whether or not a natural watercourse ran through the lands of the plaintiffs. The title to the watercourse, including the bed and the banks thereof, is in the plaintiff; and the taking thereof for public use, even by a corporation in which the plaintiff may be a stockholder or member, entitled the plaintiff to compensation. If I am wrong in this, I stand ready to be corrected.”
At the conclusion of the opening statement of counsel for plaintiffs, defendant demurred to it on the ground that it failed to reveal the location of any natural watercourse through the land of plaintiffs and the court was bound by the presumption that such natural watercourse did exist. This demurrer was overruled. At the conclusion of all the evidence each party asked that the jury be instructed to bring in a verdict in their respective favors. These motions were overruled.
The jury returned a verdict for plaintiffs and fixed the amount at $18,083.
In due time defendants filed a motion for a new trial on the ground it was not afforded a reasonable opportunity to present its evidence and be heard on the merits; ■ erroneous rulings of the court; erroneous instructions given by the court; that the court erred in certain specific instructions given and in refusing certain instructions requested; in overruling defendant’s demurrer to plaintiffs’ opening statement; in overruling defendant’s motion for an instructed verdict; erred in the admission of evidence; in refusing to permit the jury to read or have read to it certain exhibits; in submitting only one form of verdict to the jury. This motion for a new trial was overruled. The appeal was from the order overruling defendant’s demurrer to the opening statement of plaintiffs; the overruling of defendant’s motion for an instructed verdict from the judgment; and from the order overruling its motion for a new trial.
Defendant first argues the trial court erred in giving instruction No. 4. That instruction was as follows:
“You are instructed it is immaterial in your consideration of this case as to whether a natural watercourse existed through the land of the plaintiffs. You are further instructed that the beds and banks of a non-navigable stream are private property subject to the exclusive appropriation of the owner, and he may in the course of his farming operations cause the banks and channels thereof to be erased and to alter its course, so long as he doesn’t alter its course as it enters his property from the land of another to the other’s damage, or doesn’t change its course as it leaves his land onto the property of another to the other’s damage. He may not obstruct or cause the obstruction of the flow of waters so that such waters will dam up and overflow the lands of others.”
Our attention is called to the first sentence of the above: “You are instructed it is immaterial in your consideration of this case as to whether a natural watercourse existed through the land of the plaintiffs.” Here an examination of the issues made by the pleadings becomes necessary. Briefly, the plaintiffs stated in their petition the defendant took their land for a drainage ditch without paying for it. Defendant answered there had been a watercourse across the land of plaintiffs and others; that on account of the watercourse being filled in, floods resulted; and that pursuant to G. S. 1949, 24-401, et seq., defendant was organized and proceeded to clear out the channel of the watercourse as the statute gave it the power to do and hence it was not liable to plaintiffs except where it went beyond the natural watercourse.
The entire defense depended on the pleaded fact that this was a natural watercourse and it was acting pursuant to the statute. Without the existence of a natural watercourse and without the statute, defendant would have been a trespasser on plaintiffs’ land. Not only the pleadings but the statements of counsel during the pre-trial conference make it clear the real question at issue was whether there was a watercourse, and if so, whether the operations of defendant followed it. Thus counsel for plaintiff stated:
“The defendant Drainage District did construct the drainage ditch through the property of the plaintiff without acquiring the land by condemnation, dedication, gift, purchase or in any other manner. They just moved on the land and dug the ditch.”
Further on counsel for plaintiffs stated:
“It is our position if there was a natural watercourse in this district, which of course in our judgment is absurd, that it is an immaterial thing, because they did not follow any well defined natural watercourse with banks. Their answer admits that there was no well defined banks over this land. They say that at sometime in the remote past, and which they do not designate, there had been, that it had been filled up, but they admit in their answer that there was no watercourse, natural watercourse, at the time this ditch was constructed across our properties. He contends that it is a vital issue to determine that order of the county commissioners is conclusive and is res adjudícala upon us as to the existence of a natural watercourse in that area. We say it is immaterial. We will contend there was no natural watercourse there of any kind in any portion of the district; that the order of the county commissioners was entirely erroneous and put over in a hurry and without due consideration by our clients. But we say that this is not an issue of any important matter, because we say it is utterly immaterial because it is our contention, and we think we can prove definitely, that if there was a natural watercourse on there, it didn’t exist at the point where they constructed that ditch.”
It is true the trial court in a pre-trial order held:
“Again let me say, in the hope that it will limit and clarify the issues, that my present view of the law is that it makes litle difference whether or not a natural watercourse ran through the lands of the plaintiffs. The title to the watercourse, including the bed and the banks thereof, is in the plaintiff; and the taking thereof for public use, even by a corporation in which the plaintiff may be a stockholder or member, entitled the plaintiff to compensation. If I am wrong in this, I stand ready to be corrected.”
However, in his opening statement counsel for plaintiffs said:
“It is the defendant’s contention that they had every right to go on Mr. Wolf’s land and remove obstacles that are wrongfully placed in the course of a natural watercourse which ran through this farm. Members of the jury, that contention is absolutely absurd. Never has there been a watercourse that ran across this farm.”
Practically every witness introduced by plaintiffs testified there had never been a watercourse on plaintiffs’ land.
Attention is next directed to the additional matter in instruction No. 4, after the first sentence just quoted. The trial court proceeded to tell the jury the bed and banks of a stream were private property and the owner might in the course of his farming operations cause the banks and channels to be erased and to alter its course so long as he did not alter its course as it entered his property from the land of another to the other’s damage or did not change its course as it left his land onto the property of another to the other’s damage, and that he might not obstruct or cause the obstruction of the flow of waters so that such waters would dam up and overflow the banks of others.
When considered with the first sentence of the instruction, this language could have no other effect than to confuse the jury. As has been demonstrated, the issue presented by the pleadings was whether there was a watercourse across plaintiffs’ land so as to warrant the action taken by the district, pursuant to G. S. 1949, 24-401, et seq. The issue was not what a landowner could do with the bed of a stream running through his land. It was rather what power and authority was conferred on the drainage district when it was organized. These are set out in G. S. 1953 Supp., 24-407. The district is first given power to exercise exclusive control over all watercourses and to widen, deepen, establish and regulate its channels. G. S. 1949, 24-434, provides for a liberal construction of the act, to encourage the improvement of natural watercourses and to protect land from damage by overflow and promote the public health, convenience and welfare. Here instruction No. 3 given by the court becomes important. By it the jury was told the district had power to take what action was deemed necessary by it to construct a drainage system to prevent the overflow and damage from overflow of all natural watercourses within the boundaries of the district, but in so doing it could not take private property for public use without just compensation to the owners. This instruction, taken together with the next one, when the jury was told the beds and banks of a non-navigable stream were private property, in effect told the jury that when defendants entered upon the bed of this watercourse and cleaned out the channel and removed the obstructions alleged to have been placed there, it was taking private property without compensation. This is not the law. It is true that the bed of a non-navigable stream is the private property of the person through whose land it flows. He holds it, however, subject to the police power. Defendant is a public corporation created for the purpose of preserving and protecting life and property from the ravages of floods.
In Roby v. Drainage District, 77 Kan. 754, 95 Pac. 399, we considered the constitutionality of Chapter 215, Laws of 1905, now G. S. 1949, 24-401, et seq. We pointed out that the organization of drainage districts was authorized by the legislature to carry out a plan for the benefit of public health and welfare. We quoted from In re Madera Irrigation District, 92 Cal. 296, 28 Pac. 272, as follows:
“ ‘It may create municipal organizations or agencies within the several counties, or it may avail itself of the county or other municipal organizations for the purposes of such legislation . . . This principle is not contravened by the fact that it may even operate injuriously upon some of the individuals or proprietors of land within the district, or by the fact that there may be some who for personal motives may wish to resist the improvement. Such result is only a sacrifice which the individual makes to the general good in compensation for the advantages enjoyed by virtue of the social compact.’” (p. 759.)
The drainage district is an arm of the state created to carry into execution its police powers.
The obstructions claimed by defendant to have been placed in this watercourse were placed there, some of them in the 1930’s. The filling in and leveling of banks was commenced then and continued, resulting in floods during the early 1950’s. There was evidence that leveling of the banks was carried on in 1945, 47, 48 and 49. Defendant makes no claim but that it should pay for any land of plaintiffs other than the watercourse. It requested an instruction as follows:
“You are further instructed that if defendant in clearing the channel of said natural watercourse or in making other improvements in the drainage system of the district, appropriates land in addition to the natural watercourse, it must pay for such appropriation.”
This instruction was based on a correct theory of the law of drainage districts. It should have been given. The district may not be compelled to pay for any land taken for this ditch which had before the filling in been a part of thé bed or banks of the watercourse. It may, however, be compelled to pay for land taken outside the natural watercourse. It had the burden of proving what land was thus taken. This question was taken from the jury by giving of instruction No. 3 and No. 4, and the refusal to give requested instruction No. 5. This resulted in the action being tried on an erroneous theory. Giving those two instructions and the refusal to give requested instruction No. 5 was error.
Defendant next argues there was sufficient evidence of the existence of a watercourse to warrant the question being submitted to the jury. In view of the action of the trial court in taking this question from the jury, this is not important here. Furthermore, what we shall have to say on the next point renders it unnecessary to decide it.
Defendant next argues the trial court erred in permitting plaintiffs to deny the existence of a natural watercourse. It bases this argument on the finding of the board of county commissioners when the petition for the formation of the district was presented to it. G. S. 1949, 24-401, et seq., provides for the submission of a petition asking for the organization of a drainage district. In that respect it is not much different from any of the many statutes providing for the organization of cities, school districts and any of the municipalities. There is provision for notice and a public hearing. G. S. 1949, 24-406, provides:
“. . . And all declarations, determinations, findings, decisions and orders of such board of county commissioners so entered of record shall be conclusive on all persons, so that no matter or fact so determined shall ever be disputed by anyone, and such record, or a properly authenticated copy thereof, shall be conclusive evidence in all courts of the matters therein recited and of the corporate existence of such drainage district. . . .”
The petition stated first:
- “We, the undersigned, taxpayers residing within the district hereinafter described, state that the following described lands are subject to overflow or injury from overflow of a natural watercourse, which natural watercourse drains from the north part of said district to the south part thereof and empties into the Arkansas River, said natural watercourse is normally referred to in Finney County, Kansas, as the White Woman River; that the construction and maintenance of levies, drains and other works are necessary to drain such overflow and that such improvements and works will be conducive to the public health, convenience and welfare.”
The district was then described by metes and bounds. One of plaintiffs signed the petition. No one argues but that plaintiffs’ land was within the boundaries of the proposed district. The board of county commissioners found amongst other things that the allegations of the petition were true and ordered the organization of the district. Included in this finding of the truth of the petition was a finding that the “natural watercourse” drained from the north part of the district to the south part of it. Since plaintiffs’ farm is the southernmost farm in the district and the district at that point is exactly the width of plaintiffs’ farm, it can hardly be argued that the order of the county commissioners was not to the effect that a natural watercourse flowed through plaintiffs’ farm. G. S. 1949, 24-406, provides this finding may not ever be disputed by anyone. This must be the law, otherwise any person dissatisfied with the conduct of its affairs could continually harass a new district by attacking the findings upon which it was based. This need only be applied to the organizing of school districts and cities to demonstrate the necessity for the rule.
What we held in Kowing v. Douglas County Kaw Drainage Dist., 167 Kan. 387, 207 P. 2d 457, is in point here. One whose land had been included in a drainage district sought to take advantage of G. S. 1949, 24-498. That section was enacted in 1947 to provide a means by which one whose land had been harmed and not benefited by the improvements made by the drainage district could cause it to be detached from the district. We remarked the procedure for having that done followed substantially the procedure for organ ization of the district, that is, by a petition to the board of county commissioners, a hearing upon the petition and the fixing of a time and place for the hearing. The county commissioners heard this petition and ordered that the land be detached. The district appealed to the district court. There a motion to dismiss the appeal was denied. The court heard the whole matter de novo and found the land had been harmed and not benefited and ordered it detached. On appeal we pointed out first that the appeal should have been dismissed because not provided for by the statute. In addition we said:
“There is another reason, if one is needed, for the same result. It is the general rule that the creation, enlargement, or diminution of political districts or municipal corporations is a legislative function properly to be determined by a legislative body rather than by the court. By our constitution (Art. 2, § 21)-the legislature may confer upon the board of county commissioners such power of local legislation and administration as it shall deem expedient. By the statute in question the legislature did confer upon the board of county commissioners the authority granted by the statute in question.” (p. 391.)
This is a well considered opinion and settles the question whether a point once settled at the hearing before the board of county commissioners may be questioned in a collateral proceeding such as this action.
The result is the court erred in permitting plaintiffs to deny the existence of a watercourse across their farm. As a matter of fact, we are at somewhat of a loss to ascertain just what is the position of plaintiffs on this point. At some points in the record they take the position there was no watercourse there. In other places they argue it was immaterial since the defendant did not follow it with his ditch. For the latter argument to be good it would be necessary for plaintiffs to show at what point the defendant departed from it and to what extent. This was not attempted by them. In the view the trial court took of the action defendant was a trespasser on plaintiffs’ land. The only question this had the effect of rendering meaningless is the drainage district statute.
Defendant next argues the trial court erred in denying it the right to introduce evidence on the source, description and nature of the entire natural watercourse in the district. The action was tried as though defendant was a corporation proceeding against the plaintiffs alone.' Such was the wrong theory. The entire district, including plaintiffs, was organized pursuant to the statute to carry out a common purpose and to solve common problems. The land of plaintiffs could not be set apart and its problems considered separate and apart from those of the rest of the land in the district. • The evidence offered as to the source, description and nature of the watercourse and damages from its overflow should have been, admitted.
Defendant next argues the trial court erred in admitting evidence on and giving instructions on consequential damages. The trial court withdrew from the consideration of the jury the plaintiffs’ claim for allowance of the cost of bridges across the ditch and further instructed the jury that no allowance could be made for loss or prospective loss by erosion from water flowing through the ditch. This was correct. The defendant requested several instructions, which were denied. Some of them were:
Instruction No. 3.
“You are instructed that the burden of proof is upon the plaintiffs, Walter F. Wolf and Myrtle B. Wolf, to prove by a preponderance of the evidence that they are entitled to damages for the appropriation of land by the defendant. It is not sufficient that they prove or attempt to prove that no natural watercourse existed at the place where the improvements are made. Since tills court is bound by the findings of the Board of County Commissioners to the effect that the watercourse drains through the lands of the plaintiffs, the plaintiffs must show where and in what manner the course of the improvements departs from the natural watercourse through their lands.”
Instruction No. 5.
“You are further instructed that if Defendant, in clearing the channel of said natural watercourse or in making other improvements in the drainage system of the district, appropriates land in addition to the natural watercourse, it must pay for such appropriation.”
Instruction No. 7.
“You are instructed that in determining damages, if any, to the Plaintiffs, the Defendant is not liable for, is not required to pay, and you may not, therefore, consider any damages caused to the remaining lands of the Plaintiffs which would be the natural and probable result of the normal clearing of the channel of said watercourse and the removal of obstructions therefrom.”
Instruction No. 9.
“You are instructed that if you find that Plaintiffs are entitled to any damages for land appropriated by Defendant, you may offset such damages by any benefits you find have resulted to Plaintiffs by the construction of such improvements such as preventing or minimizing the overflow or danger from overflow of Plaintiffs’ lands, the straightening of the channel of the watercourse, the improvement of the drainage system of Plaintiffs’ lands and other similar benefits.”
These instructions for reasons already set out in this opinion should have been given.
Defendant next argues the trial court erred in refusing to admit evidence and to instruct the jury on the question of estoppel. This is based on the fact that one of plaintiffs signed the petition upon which the district was formed. Once the action is tried on the theory outlined in this opinion it will be seen this argument is not good.
The judgment of the trial court is reversed with directions to grant defendant a new trial in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Parker, J.:
The defendant, James Peasley, was arrested, tried, convicted and sentenced on charges of burglary and larceny in connection with such burglary. He appeals from the judgment and sentence and from the order overruling his motion for a new trial.
In view of the issues presented on appellate review, and because the defendant introduced no contradictory testimony, detailed reference to the factual situation on which his conviction depends is neither necessary nor required. Therefore, without attempting to relate all the facts, which we readily conclude were sufficient to permit the question of defendant’s guilt or innocence to go to the jury, we shall now give our version, based on evidence coming from the lips of disinterested witnesses and two persons participating in the crimes, of the facts essential to a proper understanding of what was before the jury and the trial court at the time of the rendition of the verdict and judgment.
Sometime after 11 p. m. on the evening of Saturday, December 4, 1954, by previous conference and arrangement, the defendant and five other young men, all residents of St. Joseph, Missouri, left that city in an automobile and proceeded to Highland, Kansas, where they burglarized the Jay Hawk Cafe in which its then owner, one Mildred Miller, operated an eating establishment and maintained her living quarters. During the course of the burglary, in which all six men participated, a 17-inch Crosley TV set; a lady’s wardrobe Samsonite suitcase; a set of plate silverware; a lady’s yellow gold lapel watch; a travel alarm clock; five or six sets of costume jewelry; a yellow gold diamond wedding ring; and other items of personal property, owned by Miss Miller and on which she placed a true money value far in excess of $20, were taken from the restaurant building and placed in the automobile of the burglars, who then left Highland and returned to St. Joseph, where they went to an apartment, occupied by one of such burglars, and divided their loot.
Upon discovery of the burglary on the morning of Sunday, December 5, the authorities of Doniphan County reported it to the police department of St. Joseph, Missouri, and gave them a list of the ' items missing from the cafe. Thereafter members of such department recovered the Samsonite suitcase' from a St. Joseph pawnshop and apprehended James Saale, the individual who pawned the suitcase. At the same time they apprehended Marty Holliday, Saale’s roommate, and upon a search of Holliday’s room found a colored celluloid sheet which Miss Miller subsequently identified as the covering which had been affixed to the face of her TV set at the time it was stolen. Later, and in the course of the trial, the Samsonite suitcase as well as the colored celluloid sheet were identified as property taken from the cafe on the date of the burglary.
Following apprehension of Saale and Holliday the St. Joseph police learned that Eugene Dotson had transported a group of young men from St. Joseph to Highland on the late evening of Saturday, December 4, in an automobile. With this information they apprehended Dotson who immediately confessed to having participated in the burglary and gave them information which implicated James and David Saale, Holliday, James McGinley and James Peasley, whom Dotson knew as Jimmy McKeevor. Thereafter all the individuals above mentioned were turned over to the Doniphan County authorities. Subsequently the defendant, James Peasley, was arrested, charged with the crimes heretofore indicated and, upon trial by a jury wherein the facts heretofore related and others to be presently mentioned were established by evidence, convicted and sentenced to the State Penitentiary for the commission of such crimes. This appeal followed.
Two errors assigned and argued by appellant relate to alleged erroneous admission of evidence during the course of the trial. The first is that the court erred in admitting evidence of his having been convicted of a similar crime, i. e., grand larceny. In this connection we pause to point out the record discloses that the court in admitting such evidence advised the jury that it was being admitted to show a predilection toward the sort of crime with which appellant was charged, to show a tendency along that line, and not for the purpose of proving his guilt or innocence of the crime in question. The second is that the colored celluloid sheet, to which reference is made in the preceding factual statement, was erroneously admitted because it was obtained by unlawful search and seizure.
It is not required that we labor either of the foregoing contentions. As to the first it may be stated this court has long been committed to the rule that evidence of similar offenses is admissible to prove the matters for which the court advised the jury it was admitting the evidence in question. See Hatcher’s Kansas Digest (Rev. Ed.), Criminal Law,'§§ 267, 268; West’s Kansas Digest, Criminal Law, § 369. Indeed as late as State v. Aldrich, 174 Kan. 335, 255 P. 2d 1027, it has been said that questions regarding admissibility of evidence as to prior convictions are within the discretion of the trial court, and its rulings with respect thereto will not be interfered with on review unless that discretion is abused or unless it is clear that the questioned evidence had no bearing on any of the issues involved in the charge. With respect to the second it suffices to say the rule in this jurisdiction has always been that evidence, otherwise competent, is not rendered incompetent or erroneously admitted simply because it is wrongfully obtained by the prosecution. See Hatcher’s Kansas Digest (Rev. Ed.), Criminal Law, §§265, 266; West’s Kansas Digest, Criminal Law, §§ 394, 395.
In connection with the contention first above mentioned appellant, although he failed to include the instructions in his abstract and concedes he made no request for such an instruction, insists the trial court erred in failing to instruct the jury as to the force and effect to be given the evidence adduced as to his prior conviction. The answer to this contention is to be found in our decisions holding that on appeal a party is in no position to complain of failure of the trial court to give an unrequested instruction. See, e. g., State v. Graham, 172 Kan. 627, 242 P. 2d 1067; State v. Gatewood, 169 Kan. 679, 685, 221 P. 2d 392; State v. Linville, 150 Kan. 617, 621, 95 P. 2d 332; State v. Jones, 137 Kan. 273, 20 P. 2d 514; State v. Boone, 124 Kan. 208, 257 Pac. 739; State v. Turner, 114 Kan. 721, 723, 220 Pac. 254. Moreover with an incomplete record we are not warranted in assuming that any of the instructions incorrectly advised the jury as to the force and effect to be given the evidence relating to appellant’s previous conviction. (See State v. Aldrich, 174 Kan. 335, 338, 255 P. 2d 1027.)
While dealing with complaints respecting the instructions it should perhaps be stated at this point that, due to appellant’s failure to abstract the instructions in their entirety, he is not entitled to consideration or review of one of his general assignments of error to the effect the court erred in giving each and every instruction as to the law and evidence.
Appellant also makes a contention, and we pause here to note that of necessity it relates only to the larceny phase of the case at bar, that the court erred in admitting evidence which was not positive as to valuation of the articles of property taken from the cafe. Touching this point the record discloses that the owner of the property testified as to actual money value of many of such articles. It is true, that when questioned as to these valuations on cross-examination, she admitted some of such articles might have been of less value. Even so the record discloses positive and uncontradicted evidence placing a value of more than $20 on a number of the stolen items. That under our decisions (See, e. g., The State v. Bolton, 111 Kan. 577, 207 Pac. 653; State v. Handler, 142 Kan. 455, 50 P. 2d 977; State v. Coffey, 145 Kan. 253, 65 P. 2d 253) was sufficient evidence to permit and uphold a verdict of guilty on the charge of grand larceny.
It is suggested but not seriously argued that the evidence is insufficient to support the verdict. Much of the argument on this point is based on the premise the evidence of the two accomplices, who testified to the effect appellant participated in the planning and commission of the crimes in question, was either inadmissible or should not have been believed by the jury. The trouble with appellant’s position on this point is that all arguments made with respect thereto refuse to recognize, wholly ignore and entirely overlook the long established decisions of this court holding that in criminal actions (1) the uncorroborated testimony of one accomplice, to say nothing of two, if otherwise sufficient, will sustain a conviction (See West’s Kansas Digest, Criminal Law, §§ 508 to 510, inch; Hatcher’s Kansas Digest [Rev. Ed.], Criminal Law, §288); (2) it is the function of the jury, not the court of appellate review, to weigh the evidence and pass upon the credibility of the witnesses (State v. Osburn, 171 Kan. 330, 232 P. 2d 451); and (3) where there is substantial competent evidence to support it a verdict of guilty will not be disturbed on grounds it is based on insufficient evidence or contrary to the weight of the evidence (State v. Stout, 175 Kan. 414, 264 P. 2d 1056).
Next appellant contends the court and jury were prejudiced against him because he was represented in part by out of town lawyers and the verdict was rendered under the influence of passion and prejudice. These contentions find no support in the record and cannot be upheld.
In conclusion it can be stated appellant’s claims regarding error in the overruling of his motion for new trial are based upon contentions heretofore mentioned, discussed and determined and require no further attention.
The judgment is affirmed.
Fatzer, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for injunction instituted by the state of Kansas on the relation of the county attorney of Cowley county for alleged violation of the Cereal Malt Beverage Act. The case was submitted to the trial court on its merits, which made findings of fact and conclusions of law and entered judgment for defendants. The state appeals and asserts that the judgment of the trial court was contrary to the evidence. The pertinent facts may be briefly stated:
Defendant Floyd Eastin was the holder of a cereal malt beverage license issued under the provisions of the Cereal Malt Beverage Act (G. S. 1949, and G. S. 1955 Supp., ch. 27, art. 41), and operated the Blue Ribbon Inn in Cowley county. Defendant Cleo Eastin, his wife, was one of his employees. The State sought to enjoin defendants from maintaining an alleged common nuisance based on the ground that defendants delivered and sold cereal malt beverages to certain individuals who were intoxicated, and permitted them to remain on the premises in an intoxicated condition.
Subsequent to the entry of judgment by the trial court in favor of defendants, and after the appeal was taken to this court by the state, the county attorney filed a motion to dismiss the appeal in this court as to the defendant Floyd Eastin for the reason that he was then deceased, and the State did not deem it practical or proper to revive the appeal against the personal representative of the deceased. The State’s motion was sustained by this court and the action was dismissed as to defendant Floyd Eastin, February 2, 1956.
We are first confronted with defendant Cleo Eastin’s motion to dismiss on the ground that the appeal is moot, and that by reason of the changed circumstances, this court’s decision on the question presented would be of no consequence to the issues involved in the court below.
The rule is that an injunction is not an appropriate action to obtain relief for past or completed acts but operates only in futuro to prevent later acts. (28 Am. Jur., Injunctions, §§ 5, 7; Andeel v. Woods, 174 Kan. 556, 258 P. 2d 285.)
The license issued to defendant Floyd Eastin under the Cereal Malt Reverage Act was a statutory privilege inuring solely to his benefit, which license was not transferrable (Sec. 41-2702). Defendant Cleo Eastin had no rights under the license except as a mere employee of her husband. Upon the death of the defendant Floyd Eastin, his cereal malt beverage license terminated, together with all rights and privileges thereunder.
When it clearly appears by reason of changed circumstances between the trial of an action and its review in this court that any judgment this court renders would be unavailing as to the particular issue litigated, this court ordinarily will not consider and decide the mooted issue, whether one of law or fact, and where only injunctive relief is sought and the need for that relief has ceased to be a justiciable issue, this court will not, on appeal, review the merits, nor consider the granting of a new trial in such a case after it has become impossible to have a new trial in the same case. (Dick v. Drainage District No. 2, 175 Kan. 869, 267 P. 2d 494; Asendorf v. Common School District No. 102, 175 Kan. 601, 607, 266 P. 2d 309; Andeel v. Woods, supra; Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113.)
The rule that this court will not on appellate review decide a moot question in a situation where it cannot make its judgment effective has been applied not only in cases pertaining to private controversies but in those actually involving the public interest. (Andeel v. Woods, supra.)
It follows that the appeal is dismissed. | [
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The opinion of the court was delivered by
Parker, J.:
Defendant was tried, convicted and sentenced on two counts of robbery in the first degree; one count of breaking jail; one count of assault with felonious intent; and one count of grand larceny of an automobile. His appeal is limited to error in the overruling of his motion for an order of discharge.
The facts to sustain the conviction and the ruling complained of are not in dispute. For that reason we need only relate those necessary to present contentions raised on appellate review.
An information, charging the defendant with commission of the above mentioned crimes, was filed in the Oswego division of the district court of Labette County, thus fixing jurisdiction of the offense at Oswego, sometime between the opening and closing days of the April 1954 term of that division of such court. A few days later the court appointed an attorney for the defendant who subse ■quently obtained a court order authorizing the Department of the Army to release defendant’s medical record for use in an anticipated sanity hearing. Eventually this record was procured and filed with the clerk of the court.
On October 5, 1954, the opening day of the first term of court following the filing of the information, defendant was brought into court for arraignment but was not arraigned because of an application made by him, through his attorney, for the appointment of a medical commission to conduct a hearing respecting whether his mental condition was such he would be unable to comprehend his position and make a defense in the case. After granting defendant’s request for the appointment of a commission and ascertaining there were no cases ready for Rial at the October 1954 term the court ordered the sheriff not to summon jurors for such term of court.
On February 1,1955, the opening day of the second term of court following the filing of the information, and after the medical commission had returned its findings to the effect the defendant was sane, able to comprehend his position and prepare his defense in the case, defendant was brought before the court for formal arraignment .accompanied by an attorney of his own choosing who, we pause here to note, continued to represent him throughout all subsequent proceedings in the district court. Thereupon defendant was formally .arraigned and entered pleas of not guilty to the charges filed against him. Thereafter, and on the same day, the state moved that the ■case be continued to the April 1955 term of court. This request was granted over defendant’s objection.
On April 12, 1955, the opening day of the next regular term following the February 1955 term of court, the defendant’s case ■came on for trial assignment. Later, having been set down for Rial ■on a date certain it was Ried by a jury which returned verdicts of guilty on each of the crimes mentioned in the first paragraph of this opinion. Thereafter defendant, who is conceded to have been in jail throughout all proceedings in question, filed a motion in arrest of judgment; a motion for a new trial; and made an oral motion, the one here involved, for discharge on grounds he had been ■denied the prompt and speedy Rial guaranteed by law. Following the overruling of these motions sentence was imposed and a judgment was rendered which resulted in defendant’s incarceration in the state penitentiary. There he personally perfected the appeal which, as we have heretofore noted, brought his case to this court for a decision on the question whether the trial court committed error in overruling his motion for discharge.
Upon careful analysis of the incomplete and incomprehensive pro se combined abstract and brief submitted by the appellant it appears that his primary contention respecting error in the. court below is based upon the proposition that, in the face of the heretofore related uncontroverted facts, the trial- court was required to sustain his motion for discharge under the provisions of G. S. 1949, 62-1431, which read: ■
“If any person under indictment or information for' any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense which shall be held after such indictment found or information filed, he shall be entitled to. be discharged so far as relates to the offense for which he was committed, unless the delay shall háppen on the application of the prisoner, or shall be, occasioned by the want of time to try the cause at such second term.”
With regai'd to his position on the point now under consideration appellant directs our attention to the fact, which must be conceded, that he was not brought to trial until the third term of court, following the April, 1954, term during which the information on which he was tried and convicted was filed with the clerk of the district court. Based, on such fact he argues that not only the ■April, 1954, term of court but the October, 1954, term of court, as well, must be taken into account in determining whether he was “brought to trial before the end of the second term of the court haying jurisdiction of the offense” within the meaning of that term as used in the foregoing statute. Let us see.
In construing a like statute (G. S. 1949, 62-1432), so similar in language, meaning and purpose to the statute now under consideration (62-1431, supra) that there can be no room for differentiation in statutory construction between the two, this court has long been committed to the rules (1) that in computing the number of terms that have expired before trial the term during which the information was filed should not be counted as one of the terms of the court after the information was filed (See, e. g., State v. Patterson, 126 Kan. 770, 271 Pac. 390; State v. Fry, 131 Kan. 277, 280, 281, 291 Pac. 782; Nicolay v. Kill, 161 Kan. 667, 670, 170 P. 2d 823); and (2) that a defendant is not entitled to be discharged because he was not brought to trial before the end of the third term (under the statute involved in this case the second term) of court in which the cause was pending if some application on his part necessarily and directly caused the delay. Otherwise stated, that in computing the number of terms and/or terms which have expired before the trial the terms during which the delays in the trial of a criminal case are necessarily and directly caused by action on the part of a defendant are not to b,e counted in determining whether either 62-1431 or 62-1432 have application. See, e. g., State v. Barger, 148 Kan. 590, 83 P. 2d 648, where it is held:
“Under our statute G. S. 1935, 62-1432, a defendant is not entitled to be discharged because he was not brought to trial before the end of the third term of the court in which the cause was pending, if the delay happened on the application of the defendant or was occasioned by want of time to try the cause.” (Syl. f 3.)
And in the opinion said:
“In State v. Lewis, 85 Kan. 586, 118 Pac. 59, this court, in construing G. S. 1935, 62-1432, stated:
“ ‘It is not essential, under this statute, that the application should be one specifically for delay. It is sufficient if some application on the part of the defendant necessarily and directly cause the delay to happen. The word “application” is not to be restricted to its literal, etymological meaning. In the case of The State v. Dewey, 73 Kan. 739, 741, 88 Pac. 881, it was said that it signifies means to accomplish an end and denotes affirmative action, not passive submission. In this case the defendant’s objection was an affirmative act interposed as a means to prevent a trial before the judge pro tem. A postponement of the trial was inevitable, and consequently happened on the defendant’s .application.’ ” (p. 594.)
When the facts of record are surveyed in their entirety it cannot be denied that the information in this case was filed during the April 1954 term of court and we have little difficulty in concluding that appellant’s action, in asking for the appointment of a commission to determine his sanity, was the necessary and direct cause of the trial court’s action in excusing the jury from service during the next and ensuing term, i. e., the October 1954 term. Moreover, when the April and October 1954 terms of court are excluded in computing the number of terms expiring before appellant was given a trial, it is certain, that under our decisions construing the force and effect to be given the involved and similar statutes, he was brought to trial before the end of the second of the two following computable terms of court. Therefore, in the light of the facts and in the face of such decisions, we are constrained to conclude that appellant’s position the trial court erred in refusing to sustain his motion for discharge on the ground that action was required by the provisions of 62-1431, supra, lacks merit and cannot be upheld.
Finally appellant contends his motion for discharge should have been sustained because he was denied the right to a speedy trial in violation of section 10 of the bill of rights of our state constitution providing that “In all prosecutions, the accused shall be allowed . . . a speedy public trial . . The answer to this contention is to be found in the only decision cited by appellant in his brief. See In re Trull, 133 Kan. 165, 298 Pac. 775, where it is said:
“It is generally held that the statutes supplement the constitution and are to be regarded as rendering the constitutional guaranty effective and constitute a legislative definition of what is, under the circumstances named, a reasonable and proper delay in bringing an accused to trial.” (p. 167.)
The judgment is affirmed.
Fatzer, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal arises out of a partition action but is more specifically from an order of the trial court appointing a receiver therein.
Briefly summarized, the facts in this case were that Balthaser Heier died intestate on November 1, 1944. His death was followed by that of his widow, Cecilia Heier, whose testate estate is now being probated. The parties to the action were the heirs and legatees of Balthaser and Cecilia Heier and were their children or grandchildren. Two of the sons were in possession of and operated certain lands in question in conformance with two family agreements entered into at different times. It will not be necessary to detail all these matters in this particular appeal since the only germane question is whether the trial court erred in appointing a receiver to take charge of certain lands upon which there were growing crops and pasture, to harvest the crops, to take charge of the pasture and other land, and to account for the proceeds therefrom.
The record in the case disclosed that appellants’ statements border on an acceptance and a joining insofar as the appointment of a receiver was concerned, but we will pass that point for the moment, without decision thereon, and proceed to what we think is a more important issue.
The parties to the partition suit were tenants in common with respect to the land in question. Under G. S. 1949, 60-1201 we find the provision,
“A receiver may be appointed by . . . the district court . . .:
“First. In an action . . . between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.”
From the above there can be no dispute that the trial court had jurisdiction in this case to appoint a receiver. So far as the probable interest of each party involved was concerned, it may be well to state that the interests ranged from l/18th to l/144th based on whether the party was a child or grandchild of Balthaser and Cecilia Heier, who, as previously stated, were both deceased. The trial court in making the order had this to say,
“It Is Therefore by the Court Ordered, Adjudged and Decreed that the plaintiffs are jointly interested with the defendants in the real estate involved in this action and have a probable claim to the crop of wheat growing thereon, and the rentals to be received from tire grasslands, and that plaintiffs’ interest in said crop and rentals is in danger of being lost, removed, or injured, and that in order to protect the interests of all the parties in this litigation that a receiver should be appointed and that Mendel Beougher, Attorney at Law, Grinnell, Kansas, should be and he is hereby appointed receiver to harvest said wheat and to rent said pasture lands under thé order and direction of this court, and that said receiver should file his bond in the sum of $5,000.00, to be approved by this court and that said receiver should file his oath as provided by law and that upon the filing of said oath and bond that he proceed with his duties as herein set out and as by law defined.”
Appellants had no objection to the appointment of Mendel Beougher as receiver if the trial court were correct in its determination that a receiver should be appointed.
The trial court in a colloquy with counsel stated, in substance, that the appellees, plaintiffs below, claimed an interest as tenants in common in the farming operations and that anyone conducting such operations would be doing so as trustees for all the cotenant owners; that appellants, defendants below, claimed to be tenants under a lease agreement whereby all parties agreed to Cecilias sole control of the farm land for her maintenance and support during her lifetime and as a result, appellants owed only one third of the crops to the cotenant owners. Thus the pleadings and testimony showed the existence of a genuine dispute as to the division of crops to be harvested and accounted for.
Appellants contend that there was never a demand by appellees on the appellants for possession of the lands, inspection thereof, or for an accounting. We cannot agree. The record showed there were cattle pastured on growing crops and certain other crops than wheat produced, but in the testimony of appellants they were vague and uncertain as to facts in regard thereto even at a time when they were confronted with a lawsuit. Authorities need not be cited in support of the universal rule that the filing of a lawsuit constitutes a demand especially when the pleadings show that an issue exists between the parties as it does here. In addition to this, the testimony disclosed that there were minors’ rights involved and the contention of their father that their rights cannot be affected by agreements between adults was not a hollow one.
Appellants at one place maintained the trial court did not find there was danger the crops and rents would be lost, removed, or materially injured, and in the next sentence, they claimed it found only a reasonable ground to fear that appellees would not get a division of the harvest as their rights may show they should. We can see no distinguishable difference between the two and certainly the statute does not so distinguish them.
The record showed that the parties had reached an impasse as to their rights as cotenants and the trial court so found. We think the trial court acted well within its sound discretion. (Huston v. Cox, 103 Kan. 73, 172 Pac. 992; Anderson & Kerr Dr’l’g. Co. v. Bruhlmeyer, 134 Tex. 574, 136 S. W. 2d 800, 127 A. L. R. 1217, anno b., 1234; 8 West’s Kansas Digest, Receivers, § 8; 4 Hatcher’s Kansas Digest, rev. ed., Receivers, § 2; 68 C. J. S., Partition, § 87; 75 C. J. S., Receivers, § 30; 40 Am. Jur., Partition, § 81.) The appointment of a receiver for such a limited purpose as herein set out will not be disturbed on appeal.
Other contentions raised by appellants have been noted but those matters will be determinable when the issues are tried. To cover them now would be to predetermine the lawsuit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal is from the judgment of the trial court denying appellant’s claim as a common-law wife to an interest in her purported husband’s estate after his death.
George E. Hineman and Nancy Esther Hineman were husband and wife and had had four children prior to their divorce on October 4, 1952, which became final on April 4, 1953. George died on October 28, 1953, at Garden City. He left his estate to his four children by a will dated June 3, 1953.
For the sake of convenience George E. Hineman will be referred to herein as decedent; Ruth Hineman, variously known as Ruth Hauser, Ruth Liggett, Mrs. Glenn Liggett, and Mrs. George E. Hineman, as Ruth; Glenn Liggett as Liggett; and Kalo A. Hineman, decedent’s son, who was duly appointed, qualified, and acting executor of his deceased father’s estate, as Kalo.
Decedent’s will designating Kalo as executor was admitted to probate on November 18, 1953. On April 29, 1954, Ruth filed an election of surviving spouse to take under the law of intestate succession (G. S. 1949, 59-603) in the probate court of Finney county, which instrument was recorded by order of that court on the same date. On May 12, 1954, Kalo filed a petition to strike Ruth’s election and to set aside the order recording it. This was followed on May 28, 1954, by Ruth’s petition for allowance of demand and defense to Kalo’s petition of May 12, 1954, where she set up a common-law marriage entered into between her and decedent on July 12, 1953. On August 30, 1954, the proceedings were transferred to the district court for hearing. The record stated that on February 21, 1954, which date in the ordinary sequence of things must have been February 21, 1955, Richard Hineman, another son and legatee of decedent, filed a petition wherein he denied Ruth’s contentions as to the common-law marriage because she was Liggett’s wife. Kalo later filed a petition which also denied Ruth’s allegations.
Evidence was introduced which sustained Ruth’s contention there was a holding out, during decedent’s lifetime, by both her and decedent of the relationship between them of man and wife by certain introductions and their behavior in the presence of other people. This was especially true during a time they were in Colorado.
The record disclosed Ruth had met Liggett in Evergreen, Colorado, in August, 1947. She had gone with him to New York, thence to Arizona, and finally to Garden City. They met decedent in Garden City in 1948 at the El Rancho Trailer Court where she and Liggett were registered as Mr. and Mrs. Glenn Liggett. They were known as Mr. and Mrs. Glenn Liggett in Garden City, and Ruth also used the name of Ruth Hauser which continued “up until the time of his [decedent’s] death. . . At different times Ruth had purchased two trailers in which she and Liggett had resided. They were partners in a business venture during most of their acquaintanceship. There were meretricious, illicit relations indulged in between Ruth and the decedent which were admitted by Ruth to be such only from the time of their meeting and until the divorce decree of decedent became final; after that time such relations were in support of her contention of common-law marriage.
In addition, there was testimony that Ruth had borrowed money at a bank as Mrs. Glenn Liggett, had filed an application for in surance, and had made income tax returns in a like manner. Decedent had purchased a Mercury and later a Lincoln automobile, but the certificates of title contained tibie name of Ruth “Hauser.” After decedent’s death it was discovered that the title to the trailer in which he resided had been transferred to Ruth “Hauser.” At the time of his death, Ruth stated to at least three people, including the undertaker while he was making out the death certificate, that decedent was single, but they had intended to get married.
Adverse to the contention of appellant, we are of the opinion that these facts which appeared in the record and were set out more fully in the trial court’s findings of fact were a sufficient and competent basis for the trial court’s conclusion of law and judgment that there was no relation of a common-law marriage established between Ruth and the decedent, and that as a result she had no rights in his estate as a surviving spouse or widow. The trial court even went so far as to say that although certain witnesses testified decedent had told them that he and Ruth were married, “. . . the Court does not believe such testimony of such witnesses.”
The subject of common-law marriage has been well covered in two of our late decisions. (Amerine v. Amerine, Executor, 178 Kan. 79, 283 P. 2d 469; Whetstone v. Whetstone, 178 Kan. 595, 290 P. 2d 1022.) We believe that under the facts and circumstances here presented it will not strengthen this opinion to set out and analyze all the authorities from Kansas and Colorado cited by counsel, or additional cases from those two jurisdictions not cited by counsel which also touch upon some phase of common-law marriage. There is very little, if any, distinguishable difference between the two jurisdictions so far as the law relating to common-law marriage is concerned.
There were many questions raised by appellant but they all center around and depend so completely on the one point of common-law marriage that we do not deem it necessary to encumber the record with a full and detailed discussion of them in view of what we have heretofore said.
In conclusion, there was an abundance of highly conflicting evidence as to whether Ruth had been held out as the wife of decedent or as the wife of Liggett. We adhere, as we have consistently done in the past, to the rule that where the trial court has made findings of fact based upon substantial and competent evidence such findings will not be disturbed on appeal notwithstanding the record may reflect evidence which would support a contrary or different finding.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action upon a contract of sale of a business brought by an employee of the seller against the buyer for wages due from the seller under express provisions of that agreement to the effect the buyer was to assume and pay all outstanding obligations existing in connection with the operation of the business at the time of the execution of the contract as a part of the purchase price.
The cause originated in the city court of Wichita where judgment was rendered for the full amount claimed by plaintiff in his bill of particulars. On appeal to the district court plaintiff, after a trial by such court, recovered a like judgment and this appeal followed.
At the outset we pause to note a contention, based on the premise the initial notice of appeal is limited to error in rendition of the judgment only, that defendant is not entitled to a review of trial and post trial errors! Prior to the hearing of the cause defendant sought and obtained permission of this court to amend his notice of appeal to include alleged errors in the overruling of his motion for a new trial and all other adverse orders and rulings. Thereafter he amended his notice accordingly. In that situation plaintiff’s motion to dismiss the appeal, regardless of its merit at the time it was filed, cannot now be upheld. See G. S. 1949, 60-3310 and our decisions (McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 122 P. 2d 787; Boss v. Brown, 132 Kan. 86, 88, 294 Pac. 878) holding that, where a valid appeal has been taken from a judgment, this court will permit the notice of appeal to be amended so as to include an appeal from the order overruling the motion for a new trial.
The facts essential to a disposition of the issues involved in this case can be gleaned from the pleadings, admissions of the parties, and our version of the evidence as presented. Therefore they will be so stated.
On May 18, 1951, the defendant Hal W. Dickerson entered into a contract in writing with Hal A. Farha, who for sometime prior thereto had owned and operated the business, whereby Dickerson purchased the going business known as the Commodore Club, located in the basement of the Brown Building in Wichita, including all personal property belonging to or used in connection with the operation of such Club. In such agreement, and as a part of the consideration for the purchase price, Dickerson expressly agreed to assume and pay all outstanding obligations then existing in connection with the operation of the business of such Club.
On the date of the execution of such contract Farha was indebted to the plaintiff, Joseph J. Mathias, by way of past due salary in the sum of $960 for personal services and work performed by him in the operation of the business from September 10, 1950, to the date on which Farha ceased to operate and carry on the business of such Club which, so far as the record discloses, was a few days prior to the date of the execution of the contract.
■ There is some quibbling between the. parties as to the nature of the duties performed by plaintiff during the period of time in question as Farha’s employee. However, for our purposes, it can be stated that during that interim- he was employed as supervisor of the billiard parlor, lunch counter, and card room of the Club; his duties consisting of serving food, taking care of billiard tables, taking care of the card games and, in the absence of.Farha, accepting bets and wagers for the latter who, in part, at least, was operating the Club in violation of the gambling laws of the state.
With facts before it, as heretofore related, and in the face of contentions, strenuously advanced by defendant that plaintiff’s claim was unenforceable and void for the reason services rendered by him to Farha included services prohibited by the penal statutes of the State of Kansas, the trial court found for the plaintiff and rendered judgment accordingly. Thereupon defendant took the action which resulted in bringing the cause to this court where he states in his brief the sole issues involved on appellate review are:
“1. In an action for arrears of wages or salary, where plaintiff’s own evidence discloses the unlawful character of the enterprise in which the wages or salary were earned, and that the services performed by the plaintiff were prohibited by penal statutes, may a court properly overrule a demurrer to plaintiff’s evidence, when the demurrer is brought on the ground that the contract of employment, under which the wages became due, contemplated criminal activities and conduct and was therefore unenforceable and void.
"2. Where the consideration for a contract of employment is single and unapportioned, and where it is established by the uncontroverted evidence of both parties to a lawsuit that the business or enterprise in which the employment is performed is legitimate in part and illegal in part, and that the services rendered by the plaintiff-employee included acts in contravention of penal statutes; and where, in an action for wages earned under the contract of employment, the trial court finds as a fact that the plaintiff-employee performed criminal acts which ‘were incidental and a minor part of his employment’, may such court properly render judgment for the wages or salary allegedly eaijied under such contract?”
And on oral argument concedes that' his defense to the action is based strictly on the theory plaintiff’s employment was of illegal character and therefore his claim with respect thereto is unenforceable in a court of law.
Resort to appellant’s own statement of the issues involved, which we pause to here note are of such nature they can be considered and-disposed of together, an analysis of his contentions with respect thereto, and an examination of all Kansas cases cited in support thereof, disclose that appellant’s position on appellate review is that an employee cannot successfully maintain an action for wages earned under a contract of employment where it appears such contract contemplated and involved the performance of criminal activi ties, conduct and service, basically this position is predicated on the rule of universal application that courts will not aid either party to an illegal agreement but leave them where it finds them. We have no quarrel with the sound and salutary rule on which appellant relies. In fact no court has been more consistent in applying it than our own. The difficulty from appellant’s standpoint rests not in the rule he seeks to apply but on the fallacious assumption the instant action is one to recover on the original contract of employment. Here, it appears from the uncontroverted pleadings and evidence of record, appellee founds his right to recover on appellant’s separate and distinct contract with Farha to assume and pay appellee, as a part of the consideration for such contract, the outstanding wage obligation due him from Farha at the time appellant pmchased the business in question. Under such conditions and circumstances appellee’s cause of action is not based on the illegal contract of employment but on the independent contract of appellant to pay him in accord with the terms of the latter’s agreement with Farha; hence, under another rule announced by our own decisions and well supported by other authorities, the defense of illegality in the appellee’s original contract of employment cannot be invoked by appellant to defeat the instant action.
The conclusion just announced is supported by the early Per Curiam decision of this court in Coppedge v. Goetz, 67 Kan. 851, 73 Pac. 908, where, in disposing of a contention similar to the one relied on by appellant in the instant case, it is said:
“It is also contended that plaintiff could not recover against defendants without showing its own unlawful connection with Conner in violating the prohibitory law of Kansas, and therefore could not maintain this action. If a plaintiff cannot prove his cause without showing that he has violated the law in the transaction out of which his alleged cause of action arises and upon which he relies for a recovery, a court of justice will not assist him. (1 Suth. Dam., 2d ed., § 5; Falk v. Brewing Co., 10 Kan. App. 248, 62 Pac. 716.) This principle only applies, however, where the cause of action is depending immediately upon the illegal transaction for its support. In the present case the plaintiff did not rely upon its illegal contract with Conner for a right of recovery. Its cause of action against the defendants for the wrongful destruction of its property does not depend upon or grow out of the unlawful transaction between it and Conner.” (pp. 852, 853.)
For a general statement of the rule as recognized and applied in other jurisdictions see 12 Am. Jur., Contracts, 720 § 211, where the following statement appears:
“The rule that the law will not enforce an illegal agreement has application only as between the immediate parties thereto, and hence one in possession of the fruits of an illegal transaction to which he was not a party cannot invoke the rule. Thus, when one party to an illegal agreement pays money in execution and satisfaction of it to a third person for the use of the other party to the agreement, upon a promise by the third person to, pay it over to the other party, the third person cannot defend an action for the money on the ground of the illegality of the agreement in satisfaction of which it was paid. Since he in no way participated in the illegal agreement and his obligation to pay over the money is a new and different agreement, the plaintiff need not rely upon the illegal agreement to establish his case, but merely upon the new agreement to pay over the money. This latter agreement the court will enforce, and will not allow the defendant to retain the money because of the illegal agreement in which he had no privity. . . .”
See, also, 17 C. J. S., Contracts, 671, 672 § 283, which reads:
“The defense of illegality, although open to the parties and those claiming under them, cannot as a general rule be invoked by third persons. . . .
“Where, in execution or satisfaction of an illegal contract, one of the parties thereto pays money or delivers property to a third person for the use of the other party to the contract, on his promise, express or implied, to deliver such property to such other party, such third person cannot defend an action by the latter for such property on account of the illegality of the contract in pursuance of which it was delivered to him. In such case the action is not based on the illegal contract, but on the independent contract of such third person to deliver over the property received by him, although an exception to this rule has been recognized in cases of contracts having a tendency to injure the public service.”
Time will not permit citation or discussion of the numerous cases wherein the foregoing rule has been considered, discussed and applied. However, and without attempting to exhaust the field, it may be stated that ample support for such rule, as well as the conclusions heretofore announced, is to be found in decisions handed down by the highest court of this land. See Armstrong v. American Exchange Bank, 133 U. S. 433, 33 L. Ed. 747, 10 S. Ct. 450; Planters’ Bank v. Union Bank, 83 U. S. 483, 21 L. Ed. 473; Brooks v. Martin, 69 U. S. 70, 17 L. Ed. 732; McBlair v. Gibbes et al., 58 U. S. 232, 15 L. Ed. 132; Armstrong v. Toler, 24 U. S. 258, 6 L. Ed. 468.
What has been heretofore stated and held disposes of the issues raised on appeal and compels an affirmance of the judgment. Therefore such judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover for personal injury and property damage sustained by plaintiff (appellant) as a result of a gas explosion. Plaintiff appeals from an order of the trial court sustaining defendant (appellee) Bisers demurrer to his petition. Defendants Carlson Construction Company and Gas Service Company are not involved in this appeal. Insofar as defendant Biser is concerned, the pertinent part of the petition alleged the residence of the parties, their status, the corporate existence of the corporations, and that the property immediately to the rear of his residence was owned by a Mr. Garnett who made a contract with the Carlson Construction Company to place a concrete slab on his property. Defendant Biser was employed by the construction company to perform grading and leveling preparatory to pouring the cement slab, under the direction and supervision of the construction company.
The petition further alleged that on March 13, 1953, at approximately 1:15 p. m., the defendant Jack D. Biser was operating a tractor-grader or shovel and was engaged in grading, leveling and removing part of the topsoil immediately to the rear of the residence of the plaintiff, and did in such operation negligently run against and strike a gas line which ran from the gas main in the alley to the rear of the plaintiff’s house, and that the force of the blow against the gas line caused it to separate just adjacent to the foundation of plaintiff’s house.
Defendants Biser and the Carlson Construction Company were immediately informed of the broken line by the plaintiff, and he further informed Biser several times prior to the explosion that gas was accumulating in his home, and in each instance Biser assured the plaintiff that the situation was not serious and they would take care of it.
The plaintiff was advised and believed that at some time after the gas line was damaged, the defendant Carlson Construction Company acting by and through its agent, Paul Carlson, informed the Gas Service Company by telephone of the broken line and escaping gas, but that the defendant Gas Service Company did not act immediately on the advice and did not arrive at the home until after the explosion occurred; that the exact time the Gas Service Company was informed, and the agent to whom the information was given, were unknown to plaintiff but were well known to the defendants herein.
That at approximately 2:45 p. m. of the same day plaintiff, being apprehensive of the safety of his home, returned thereto and, observing that no apparent action had been taken, went into the basement and proceeded to open windows in order to allow the accumulation of gas to escape, at which time the gas, which had been allowed to accumulate in an explosive mixture, exploded in a severe and violent manner and threw the plaintiff with great force and violence a distance of twelve to fifteen feet onto and against the furnace in the basement, thus injuring him and damaging his property.
It was further alleged that the injury and damage sustained by him were the direct result of the negligence of defendant Biser and the construction company (1) in failing to establish the location of the gas line prior to excavating and grading the ground to the rear of the plaintiff’s home; (2) in operating the grading equipment in such a manner as to cause it to run into and damage the gas line; (3) in failing to establish the location of the broken line or gas leak and to take the necessary steps to cause said gas to escape in a manner so as not to endanger the plaintiff and his property; (4) in failing to recognize the dangerous situation and to take other reasonable precautions, and (5) in failing to timely notify the Gas Service Company of the damage to said gas line.
It was further alleged that by reason of the negligent acts of defendant Biser, plaintiff received personal injury, was hospitalized, incurred medical and hospital expenses, sustained loss of income and damage to personal property, and other damages not material to the question involved herein, and prayed judgment in the amount claimed.
Defendant Biser demurred to the petition on the ground it failed to state facts sufficient to constitute a cause of action. From an order sustaining Biser’s demurrer, plaintiff appeals.
There is nothing in the record to indicate the theory on which the trial court sustained Biser’s demurrer. However, defendant Biser argues in his brief that the basic legal principle involved in this appeal is that one who voluntarily submits himself to a known hazard cannot recover for injury arising out of the assumed risk, and although contributory negligence is an affirmative defense, where the petition discloses on its face that the plaintiff is guilty of contributory negligence, it is demurrable.
Biser contends that plaintiff’s petition reveals the gas line was broken at 1:15 p. m., and gas was escaping into plaintiff’s home and he complained of that fact to the defendants; that gas had been escaping into his home until 2:45 p. m., some one and a half hours, when plaintiff became apprehensive of the safety of his home, and voluntarily went into the basement to open the windows, and an explosion occurred and he was, therefore, guilty of contributory negligence barring his recovery, and that Biser’s demurrer was properly sustained.
It is not in every instance where one exposes himself to a known danger and injury results that he is denied a right to recover, but only in that class of cases where the danger is so obvious and imminent that a person of ordinary prudence under like circumstances would not subject himself to it. Danger may lurk within every defective condition, and yet may not be of such character that men of ordinary prudence would hesitate to expose themselves thereto. The defect and danger therefrom must be such that knowledge, or imputed knowledge thereof, would cause an ordinarily prudent person to appreciate the risk therefrom. The principle is too well established to require a citation of authorities to support it, that mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. Mere knowledge of the offending instrumentality does not constitute contributory negligence as a matter of law. (Louisville Gas Co. v. Fry, 147 Ky. 754, 145 S. W. 748; Loney v. Laramie Auto Co., 36 Wyo. 339, 255 Pac. 350, 53 A. L. R. 73, 80.) It is not contributory negligence, as a matter of law, to enter the basement of a home where gas is perceptibly escaping, or to search for the location of the leak with a light. To do so may not be dangerous, according to the circumstances, among others, the extent of the leak, the size of the enclosure where located, and the length of time the leak has existed. The question of contributory negligence is a matter for the jury. (Shearman and Redfield on Negligence, Vol. 4 [Rev. Ed.], p. 1758, § 768.)
Our court has had occasion to pass on a somewhat similar situation applying the rules of law applicable to the instant case in Newland v. City of Winfield, 131 Kan. 191, 289 Pac. 402, where the plaintiff used a lighted match to search for a gas leak and an ex plosion followed. We said where one used an open light, such as a lighted match, to enter a cellar or a closed place into which gas was escaping, the question of his contributory negligence must be determined by a consideration of all the circumstances, such as the extent of the leak, the size of the enclosure where located, the length of time the leak had existed, and that the question of his negligence, if any, was for the jury. And, again, in Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 160 P. 2d 270, it was contended that gas had been noticed in the house the evening before the explosion, and that for the plaintiff to remain in the house after the discovery of gas, and leave the pilot light on the hot water tank burning, constituted contributory negligence. We rejected that contention and held the question of contributory negligence was a matter to be submitted to a jury under all the surrounding facts and circumstances. Our opinions in Newland v. City of Winfield and Jelf v. Cottonwood Falls Gas Co., both supra, thoroughly discuss the rules of law applicable to the question involved herein, and further comment here is unnecessary. Other cases following our general rules discussed in the mentioned cases are collected in 26 A. L. R. 2d 136, 183, et seq. See, also, Soulier v. Fall River Gas Works Co., 224 Mass. 53, 112 N. E. 627; Gillespie v. Carbon Co., 98 W. Va. 481, 128 S. E. 316; Leavenworth Coal Co. v. Ratchford, 5 Kan. App. 150, 48 Pac. 927.
After examining the petition and giving the allegations contained therein the liberal construction to which they are entitled, and accepting those allegations as true for the purpose of ruling on Biser’s demurrer, we are unwilling to say the petition shows on its face that the appellant was guilty of contributory negligence as a matter of law.
In our opinion, when the allegations of the petition are considered in their entirety they present a question of negligence on which the minds of reasonable men might differ and, therefore, one which if established by the degree of proof required should be submitted for decision to a jury under proper instructions as to the law applicable to the rights of the parties under the issues framed, and facts and circumstances raised and disclosed by pleadings and evidence. The trial court erred in sustaining Biser’s demurrer to the plaintiff’s petition.
The judgment of the trial court is reversed and the case is remanded with directions to overrule Biser’s demurrer to plaintiff’s petition. | [
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Opinion by
Green, C.:
This was an action brought by the defendants in error, who are husband and wife, to recover the balance of the purchase-price of certain real estate in the city of Anthony, in Harper county. The title to a portion of the real estate was in each one of the plaintiffs below. On the 11th day of March, 1887, S. E. Adams, John F. Goggin and B. F. Smith were engaged in the real-estate business in Anthony, under the name of the Anthony real-estate exchange. The real estate in question was placed in the hands of said firm, and sold on the same day, for $5,650, and a deed was made by R. J. and Mary H. Simpson to W. H. Hurd, the plaintiff in error. The court below found that S. E. Adams, one of the members of the real-estate exchange, in behalf of the plaintiffs below, sold said real estate to W. H. Hurd, John F. Goggin and J. T. Holdridge; that there was a mortgage upon the premises for $2,890, which the purchasers were to assume as a part of the consideration] that $750 was the only part of the purchase-price paid to the plaintiffs below, or either of them ] that two of the lots conveyed to the plaintiff in error were sold and deeded by him to the purchaser, the consideration expressed being $800] that on the 16th day of May, 1887, W. H. Hurd paid interest upon the mortgage upon the land deeded to him, amounting to the sum of $288. From the conclusions of fact, the trial'court found that the plaintiffs were entitled to recover the sum of $2,010, with interest at 7 per cent, per annum from the 11th day of March, 1887, for which judgment was rendered in the court below. The plaintiff in error assigns error, and brings the record to this court for review.
The first assignment is, that the court erred in overruling defendant’s objection to the misjoinder of plaintiffs. This objection was not made by answer or demurrer, and hence cannot be considered. The answer was a general denial. The rule is well settled that a misjoinder or defect of parties is waived, if not taken advantage of by demurrer or answer. (Comm’rs of Lyon Co. v. Coman, 43 Kas. 676; Coulson v. Wing, 42 id. 507; Woodman v. Davis, 32 id. 344; Thomas v. Reynolds, 29 id. 304.)
The next contention of the plaintiff in error is, that there was a failure of proof upon the part of the plaintiff below, and hence a demurrer to the evidence should have been sustained. We have carefully considered all the evidence in the record, and we think there is sufficient to uphold each and all of the special findings of fact. The plaintiff in error had knowledge of the fact that the land was deeded to him a short time after the execution of the same; he and his wife executed a warranty deed to a portion of the same property conveyed to him by this deed from the plaintiff below, and he also paid the interest upon the mortgage. There certainly was evidence of the recognition of the purchase of the land.
We find no error in the proceedings of the court below, and the judgment should, therefore, be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
On the 11th day of September, 1886, the defendant T. J. Coverdale was a merchant doing business at Havensville, in Pottawatomie county. He had in his possession and was the owner of a large stock of goods. He was indebted to the plaintiffs in the sum of about $240. On that day he agreed to sell his stock of goods to the other defendants, Ellis & Osborn, which sale was fully consummated on the 13th day of said month, by delivering said stock of goods to said Ellis & Osborn, receiving from them cash and their separate notes for the purchase-price of the goods. Among the notes given Coverdale for the goods was the note of Ellis for $1,550, payable 10 months from date. This action was brought May 24, 1887, to set aside the sale of the stock of goods by Coverdale to Ellis & Osborn and subject said goods to the payment of the debt of the plaintiffs. A jury was waived, and the case was tried by the court, which, among others, made the following finding of fact:
“That about the 1st day of July, Í887, Ellis paid the note of $1,550 which he had given when these goods were purchased, and which was due 10 months after date, to Ralph Coverdale, son of T. J. Coverdale, who presented the note to him for payment. He paid it by turning over to Ralph Cov erdale two notes which he held, one against Ralph Coverdale and one against his brother, amounting to $600, and paying said Ralph Coverdale $900 in cash. The money thus collected by Ralph Coverdale was paid by him to his father, of which transaction Ellis had no knowledge.”
Plaintiffs claim that, as Ellis & Osborn knew of the indebtedness of T. J. Coverdale to them before this payment of $1,550 was made by Ellis to Ralph Coverdale, such payment was made in fraud of their rights, to the extent of their claim, and that the second conclusion of law of the trial court is wrong as applied to the ultimate facts found by the court, as they appear from the finding above quoted. We think' this contention of the plaintiffs is correct. It is the settled law of this state, that where a merchant sells' his stock of goods in fraud of his creditors, the purchaser thereof is protected only to the extent of payments made or securities or property appropriated in payment thereof before he obtains knowledge of the fraud of his vendor. (Bush v. Collins, 35 Kas. 535.) But the defendants claim that the $1,550 note paid by Ellis after the defendants became aware of the character of the sale from Coverdale to them, and after they had learned of his indebtedness to the plaintiffs, was a negotiable note and indorsed by Coverdale to his son, and that therefore the security was in the hands of an innocent purchaser, and under the law was already appropriated to the payment of the debt; and hence the payment of the note to the holder was not in fraud of the right of the plaintiffs. If T. J. Coverdale had in good faith transferred the note by indorsement to his son Ralph, this contention of the defendants would be true. But we do not think the finding of the court shows that the note had been indorsed to Ralph at all. The court finds that the note was presented by Ralph Coverdale for payment, but it also finds that the money paid to him on said note was by him turned over to his father. If the note was the property of Ralph, why did he pay the money therefor to his father? We think that a correct construction of this finding shows that the note was still the property of T. J. Coverdale. If we should con strue this finding otherwise, we would then be compelled to say that such finding was not only not supported by the evidence, but was contrary to the only evidence in the case upon the question of ownership of the note, since the only evidence on that point is the statement of Ralph Coverdale, who says his father left the note with him for collection. In that event we would be compelled to reverse the case upon the ground that the controlling finding of fact in the case is not supported by any evidence. (Mo. Pao. Rly. Co. v. Cassity, 44 Kas. 207.) We think, however, that the finding of fact, while it is not as full as it should have been upon this point, is consistent with the construction which leaves the ownership of the note at the time of its payment in T. J. Coverdale. It therefore follows that the payment of the same was in fraud of the rights of the plaintiffs to the extent of their claim, and that the second conclusion of law reached by the trial court is erroneous.
We recommend that the judgment of the district court be reversed, and judgment be entered for the plaintiffs for the sum of $269.29.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
R. M. Hamill owned and occupied certain premises in Harvey county as a homestead. On the 8th day of August, 1883, he conveyed the same to his wife, Ruby E. Hamill. Some time before such conveyance, R. M. Hamill had purchased of M. S. Tyler, doing business as the. Western Lumber Company, certain lumber and materials for use in the construction of improvements on such premises. On the 4th day of January, 1884, R. M. Hamill gave to the Western Lumber Company his note for the balance due for such material. A suit was afterward commenced by M. S. Tyler, as the Western Lumber Company, in the district court of Harvey county, upon said note, and to foreclose a mechanic’s lien. On April 3,1886, judgment was rendered in favor of Tyler and against Hamill for the amount of such note and interest, but the court did not award a decree for a mechanic’s lien. At the time of the rendition of such- judgment the court made the following finding of fact:
“That said defendant, E. M. Hamill, is indebted to the plaintiff, M. S. Tyler, doing business as the Western Lumber Company, in the sum of $199.14; for lumber and material furnished said defendant, E. M. Hamill, and by him used in the erection of a dwelling-house on said premises, while he was the owner thereof, and before said conveyance to Euby E. Hamill, his wife.”
Euby E. Hamill died intestate on August 5, 1885, leaving E. M. Hamill and some minor children as heirs at law. On May 27,1886, E. M. Hamill deeded to the defendant in error an undivided half-interest in the premises. On the 6th day of December, 1886, an execution was issued upon the judgment in favor of Tyler, and the sheriff levied upon the undivided interest of the property deeded by Hamill. The defendant in error then brought this action to enjoin the plaintiff in error from selling the property, claiming that the same was exempt as a homestead. The district court decided in favor of the plaintiff below, and perpetually enjoined the sale of the premises.
It is claimed that the finding of the court, that the indebtedness for which the note was given was for lumber and material furnished by Tyler and used by Hamill in the erection of a dwelling-house on the premises in question, while he was still the owner, and the judgment entered upon such finding, constituted a lien upon the property of Hamill, whether a homestead or not; that for that particular debt there was no homestead exemption. This question involves the construction of § 9 of article 15 of the constitution. Section 9 provides for the exemption of 160 acres of farming land, or one acre within the limits of an incorporated city, occupied as a residence by the family; “but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon.” The plain reading of this clause of the constitution is, that there shall be no exemption for the pur chase-price of land or for improvements erected thereon. The court in this case found that the debt for which judgment was given was for improvements. This finding was as conclusive as the finding of the amount due. (Reed v. Umbarger, 11 Kas. 207.)
This court has said, in a case where there was a judgment upon several promissory notes given for the purchase-price of land, that the judgment should be an ordinary personal judgment against the defendant for the amount of the note and costs, authorizing an ordinary execution to be issued against the property in general of the judgment debtor subject to execution ; and on such an execution, the officer, after exhausting the personal property of the judgment debtor subject to execution, might levy on such real estate — or on any other real estate of the judgment debtor subject to execution — whether the real estate first mentioned was occupied as a homestead or not. (Green v. Barnard, 18 Kas. 518.)
In construing this same clause of the constitution, with reference to obligations contracted for the purchase-price of the homestead, it has been said;
“ There is no homestead exemption law as against obligations contracted for the purchase-money. As to such obligations, the rule is just the same as if no exemption law had ever been adopted. And land held as a homestead is, with respect to such obligations, governed by just the same rules as if it were not a homestead.” (Nichols v. Overacker, 16 Kas. 54.)
No brief has been furnished us upon the part of the defendant in error; hence we have no means of knowing what claim was made in the district court by the plaintiff below that would take this case out of the rule heretofore established by this court in the case already cited. The court having found that the debt for which judgment was rendered was for lumber and material furnished for improvements, we think there was no exemption, and the sale of the property should not have been enjoined.
The judgment of the district court should be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Mitchell county on March 16,1886, by Solon Steere, and a large number of other plaintiffs, as copartners under the name and style of “The Asherville Breeders7 Association,77 against C. W. Culp, to recover damages resulting from the purchase and sale of an alleged worthless horse. The material portion of the petition, so far as any question is raised upon it, reads as follows;
“That in the month of March, 1884, said plaintiffs bought of said defendant one dark chestnut stallion, known as ‘Jean Bart,7 for the purpose of keeping and standing him as a stallion, of covering mares and getting colts; that it was well understood by said defendant that plaintiffs were purchasing said stallion for the purpose named above, and was sold by said defendant to said plaintiffs for the purpose of being used as a stallion • that at the time of said sale plaintiffs relied upon and traded with said defendant upon the assurance given by said defendant that said Jean Bart, the stallion aforesaid, was a sure foal-getter, and was suited for and fitted for the purpose of begetting offspring, and that up to the time and at the time of said sale said plaintiffs did not know nor have any means of knowing that said stallion was impotent and barren. Plaintiffs say that at the time of said sale, and ever since, said stallion was utterly worthless for the purpose for which it was bought, being impotent and unable to beget any offspring.”
On October 30, 1886, the plaintiffs amended their petition so as to correct some of the supposed defects therein. On November 20, 1886, the defendant answered thereto. On October 7, 1887, a trial was commenced before the court and a jury upon these pleadings. On October 11, 1887, after the parties had completed the introduction of their testimony, and before the argument of the case to the jury had been commenced, the plaintiffs asked leave of the court to again amend their petition, and the court granted such leave; but the defendant objected, and announced that he could not be ready for trial if the proposed amendments to the plaintiffs’ petition were made, and thereupon the court discharged the jury and granted a continuance of the ease until the next term of the court, and imposed all the costs in the case not otherwise adjudicated upon the plaintiffs. The court gave leave to the plaintiffs till November 15,1887, within which to amend their petition, and gave leave to the defendant till December 15, 1887, within which to answer; and afterward, and on November 14,1887, the plaintiffs amended their petition by filing a second amended petition, the material portion of which, so far as any question is raised thereon, reads as follows:
“That during the month of March, 1884, the said plaintiffs bought of the said defendant, for the price of $2,500 then paid by the plaintiffs to the defendant, one certain dapple-gray stallion named ‘Jean Bart;’ that the said stallion was purchased for the express and only purpose of keeping and standing him as a stallion, covering mares and getting colts; that at the time of the said purchase the said defendant was informed and knew that the said plaintiffs were purchasing said stallion for the purpose above named, and the same was sold by the said defendant to these plaintiffs for the said purposes; that the said defendant at the time of the said sale, and as a part of the terms and consideration of said contract of sale, then and there represented, promised and warranted to these plaintiffs that the said stallion was a sound, healthy horse, perfect in all his parts, and that he was a good breeder and a sure foal-getter; that at the time of the said sale the said plaintiffs, relying upon and confiding in the said representations, promise and warranty of the said defendant, purchased the said stallion, and paid therefor the sum of $2,500 to the said defendant; that at the time of the said sale, representations, promise, and warranty, the said stallion was utterly worthless, and unfit for the purposes for which he was purchased as aforesaid, and that he then was barren and impotent, useless and valueless as a breeder and foal-getter; that by reason of the premises, the plaintiffs were misled and injured, and have sustained damages to the amount of $2,500.”
On December 14, 1887, the defendant moved to strike the amended petition from the files, for the reason that the cause of action set forth in the original petition was one of tort, founded upon deceit and false representations, while the cause of action set forth in the last amended petition is one on contract, and founded upon an alleged breach of warranty, which motion was by the court overruled, and on March 9, 1888, the defendant answered, and on March 15, 1888, he amended his answer. On March 30,1888, the plaintiffs replied. Afterward, and from May 7 to 11, 1888, a trial was had before the court and a jury upon the last-mentioned petition, answer, and reply, which trial resulted in a general verdict in favor of the plaintiffs and against the defendant for the sum of $2,300; and the jury also, in response to special interrogatories presented to them, made special findings of fact. On May 14, 1888, the defendant filed a motion for a new trial, which reads as follows;
“Now comes the defendant, C. W. Culp, by his attorneys, and moves the court to vacate the verdict in said action, and grant the said defendant a new trial in the same, for the following reasons, to wit:
“ 1. The court erred in refusing the motion of the defendant, filed December 14,1887, to strike from the files of said action the paper denominated an ‘amended petition,’ filed in said action November 14, 1887.
“2. In refusing to admit the evidence offered on the trial of the said action in support of the defense set up in the second subdivision of the defendant’s answer, in which the defendant claims that the plaintiffs, under pretense of amendment, changed their cause of action from one founded on tort to one founded on a contract; said refusal to admit such evidence being duly excepted to on the trial.
“3. In permitting the plaintiffs to amend their amended petition after having fully tried the case, and when nothing remained to be done but to submit the issues to the jury; and in permitting the plaintiffs to take advantage of the privilege of amendment so obtained, by changing their cause of action from an action founded upon false representations to au action founded upon an express contract and warranty.”
On July 7,1888, the defendant asked leave of the court to amend his motion for a new trial by adding thereto the following, to wit:
“4. Errors of law occurring at the trial and excepted to by the defendant.”
Which leave was refused by the court; and on the same day the motion for the new trial was overruled by the court, and the court then rendered judgment in favor of the plaintiffs and against the defendant in accordance with the general verdict and special findings of the jury; and on July 5, 1889, the defendant, as plaintiff in error, brought the case to this court for review, making the plaintiffs below defendants in error.
The principal alleged error is the permission given by the court below to the plaintiffs below, defendants in error, to amend their petition as it was amended on November 14, 1887. It is claimed that by this amendment the plaintiffs wholly changed their cause of action from one of tort, founded upon fraud and deceit, to one on contract, founded upon an alleged breach of warranty. The provisions of our statute authorizing amendments are very broad, liberal, and comprehensive. (Civil Code, § 139.) About the only limitations upon making amendments are, that they shall be made only “in furtherance of justice, and on such terms as may be proper;” and if of pleadings, that the amendments shall “not change substantially the claim or defense.” The amendment in the present case cannot be said, by the defendant below, not to be in furtherance of justice and on proper terms, for the court below, as a condition to making the amendment, imposed upon the plaintiffs substantially all the costs made in the case up to the time of making the amend-r ^ ° nient; and we do not think that the amendment changed substantially the plaintiffs’ claim. The statute does not provide that the amendment shall not change the form of the action or cause of action, but it simply provides that the amendment shall not “change substantially the claim or defense.” Now we do not think that the claim of the plaintiffs in the present case was changed substantially by the amendment. The original petition attempted to set forth a cause of action for the recovery of damages resulting from the purchase and sale of a worthless horse, such purchase and sale being brought about by the wrongful statements of the defendant, and the amended petition set forth a cause of action for substantially the same thing. The principal wrongs alleged in the amended petition were the wrongful statements made by the defendant, including a warranty that the horse was sound and good for the purposes for which he was bought and sold, when in fact he was not such a horse as he was warranted to be, and therefore that there was a breach of the warranty at the very time of the purchase and sale, for which breach the defendant was and is liable. In Ohio it has been held that the restriction upon amendments contained in their code, that the proposed amendment “must not change sub- . stantially the claim or defense,” does not refer to the form of the remedy but to the general identity of the transaction forming the cause of the complaint. (Spice v. Steinruck, 14 Ohio St. 213.) Also, as the amendment was permissible and was in fact made, and as the plaintiffs’ action was commenced within much less than three years and perhaps less than two years after the original cause of action accrued, there is no room for claiming that the cause of action upon which the plaintiffs recovered was barred at the time by the operation of any statute of limitations.
It seems to be further claimed that the court below erred in refusing to permit the defendant below, plaintiff in error, to amend his motion for a new trial by alleging ‘errors of law occurring at the trial and excepted to by the defendant.’ No ■ such error was committed. A motion for a new trial including such a ground must be filed within three days after the verdict is rendered, unless the party desiring to file the same is unavoidably prevented from filing it within that time. (Civil Code, § 308.) And there is no pretense that the defendant below in this case was unavoidably prevented from filing his motion for a new trial including this ground within less than three days. The defendant waited almost two months before he attempted to interpose any such ground for a new trial, and he was too late. The decision of this question also disposes of the claims of error attempted to be presented in this court by the defendant below, plaintiff in error, with respect to the rulings of the court below occurring at the trial, in other particulars than those mentioned in subdivision 2 of the defendant’s motion .for a new trial. The first-mentioned rulings we cannot consider.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
In 1873, R. W. Schoonmaker purchased the southeast quarter of section 11, township 29, range 23, Crawford county Kansas, and, with his family, resided thereon until March, 1884. He then moved off the premises, and was away during the years 1884 and 1885. He went back to the premises in March, 1886, but left again in May following, moving upon and cultivating another farm in the neighborhood owned by one Reed during the year 1886. In the spring of 1887, he returned to the farm with his family, as the tenants of Brown and Bell, he and his son paying Brown and Bell the sum of $200 rent for the place that year. The 1st of February of the following year, 1888, he and the family again left the farm, surrendering possession to Brown and Bell. The farm was occupied by M. P. and R. G. Crawford, who farmed it during the year 1884, and by one Jenkins, who cultivated it during the years 1885 and 1886, and who was on the farm occupying and cultivating it during the time Schoonmaker and wife were on the farm in the spring of 1886. April 5, 1886, while on the farm, Schoonmaker and wife executed a deed, in form an absolute warranty deed, for the premises to Brown, Crawford, and Bell. At the time of the execution of this deed, and as a part of the same transaction, a written agreement was entered into between Brown, Crawford and Bell of the first part, and R. W. Schoonmaker and Ann Schoonmaker of the second part, reciting the making of the deed by Schoonmaker and wife to said Brown, Crawford, and Bell, and providing for a reconveyance of said land by Brown, Crawford and Bell to Schoonmaker and wife, in a year from such time, upon the payment by said Schoonmaker and wife to Brown, Crawford and Bell of a certain amount of money owing by said Schoonmaker and wife to said Brown, Crawford, and Bell. Said agreement also contained the following provisions:
“ It is fully understood and agreed by said first parties, that if they fail to pay the said several sums of money to said second parties on or before the time stated above, to wit, April 1, 1887, then said second parties are entirely released from any and all obligations to convey said premises to said first parties, and time is the essence of this contract. And if said first parties make any default in any of the conditions of this agreement, then they will surrender the possession of said premises quietly and peaceably to said second parties, or their heirs or assigns. It is further understood and agreed, that until the 1st day of April, A. D. 1887, or until the payment of the several sums as stated, the said parties of the first part occupy said premises as the tenants of said second parties, and disclaim any other or further, or different title or interest therein.”
Schoonmaker and wife did not redeem, but surrendered to Brown, Crawford and Bell the possession of the premises February 1, 1888. April 5,1887, Crawford and wife deeded their interest in said land to Brown and Bell, who, on the 12th day of March, 1888, sold and conveyed said land to John N. Getter. July 22, 1879, D. M. Osborne & Co. recovered a judgment against R. W. Schoonmaker, before a justice of the peace of Crawford county, for the sum of $267.60. June 29, 1884, an execution was issued on said judgment, and returned “No property found.” July 10, 1884, an abstract of said judgment was filed in the office of the clerk of the district court of Crawford county, and now remains on the records of said court unsatisfied. May 28, 1888, an execution was issued on said judgment by the clerk of the district court, directed to the sheriff of said county, who, for want of goods and chattels of the defendant therein, levied the same upon a portion of the land above described, which was appraised at $500, and sold to D. M. Osborne & Co. for $334. Afterward a motion to confirm the sale was filed, and also a motion by John N. Getter to set aside the sale. Over the objection of D. M. Osborne & Co., evidence was heard upon said last motion, and the court finally overruled the motion to confirm, and sustained the motion to set aside the sale, to which ruling D. M. Osborne & Co. excepted, and come here with their case-made and ask this court to reverse the ruling of the court below.
There are several questions raised in this case and discussed in the briefs of counsel, but we think the real question in the case is, whether or not the judgment of D. M. Osborne & Co. was a lien upon the southeast quarter of section 11, township 29 south, of range 23 east, in Crawford county, Kansas, when execution was issued upon said judgment and a part of said land was levied upon and sold in satisfaction thereof. Said land having formerly been the homestead of R. W. Schoonmaker and wife, and occupied as such for many years, the question as to whether or not said judgment was a lien upon said land involves, first, the character of the absence of Schoonmaker and wife from said land during the years 1884 and 1885 and a portion of the year 1886; and, second, the character of the instrument, in form a deed, executed and delivered by said Sohoonmaker and wife to Brown, Crawford and Bell April 5, 1886. We will consider the latter question first. It may be true that, as between Sohoonmaker and wife and Brown, Crawford, and Bell, the former might have treated said deed and the contract accompanying it as an equitable mortgage, and thereunder paid the sum named in the said contract to Brown, Crawford, and Bell, and retained the land; but as the instrument made by them was in form a deed, and placed on record by Brown, Crawford, and Bell, and as, by the terms of the contract between them, Sohoonmaker and wife were to surrender the possession of the premises to them upon failure to pay the sum named in said contract, and as Sohoonmaker and wife did not pay said sum, but treated the instrument as a deed, and surrendered the possession of the premises thereunder to Brown, Crawford, and Bell, we think the instrument must be held to have been a deed, with a contract to reconvey upon payment of the sum therein named by Sohoonmaker to Brown, Crawford, and Bell. If such instrument was a deed, then the judgment of D. M. Osborne & Co., to have become a lien upon said land, must have become a lien before the making and delivering of said deed, April 5,1886. This involves the character of the absence of Sohoonmaker and wife from said land prior to the making of the deed thereto to Brown, Crawford, and Bell.
A person may be absent from his homestead without abandoning it as such, and without losing his homestead right therein. It depends upon the character of his absence as to whether or not he loses his homestead right thereby. If a person leaves his homestead to acquire a residence elsewhere, he loses his homestead right by such absence. If, though absent from a homestead, a person still regards it as home, and intends to return thereto, he does not lose his homestead right therein. Did the Schoonmakers intend to abandon their homestead when they left it in 1884, or afterward, prior to their return in the spring of 1886, and the making of the deed to Brown, Crawford, and Bell? If they did, then the moment they left said homestead without intending to return, or, being absent therefrom, formed an intention to remain away from said homestead, they lost their homestead right, and the judgment of JD. M. Osborne & Co., being of record in the office of the clerk of the district court, would become a lien. Schoonmaker and wife both testify that, at the time of leaving their said homestead, it was their fixed and avowed intention to return thereto, and that during all the time of their absence therefrom they fully intended to return to their homestead, and that they did return thereto about the 1st of March, 1886, and were residing thereon and claiming said land as their homestead on the 5th day of April, 1886, the date of their deed to Brown, Crawford, and Bell. Several witnesses testified that they were acquainted with the Schoonmakers during their absence from their farm, and that they frequently heard them speak of the farm as their home, and of their intention to return thereto and reside thereon. Against this evidence rests the fact of the absence of said Schoonmakers from said premises during the years 1884, 1885, and part of the year 1886. We do not think the fact of such absence could overcome the evidence of the parties themselves, that they intended all the time to return to said land and occupy it as a homestead. But upon this question the court before which the proceedings were had found against the plaintiff in error, and, as the question was a disputed one, and the record contains evidence to sustain the finding of said court, this court cannot interfere.
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
July 8, 1889, a complaint was made to the police court of the city of Topeka, charging that, on the 6th of the same month, the defendant, Charles Heitman, disturbed the peace and quiet of the city of Topeka by the use of loud, profane and indecent language. July 12, the defendant was tried in said police court and convicted, from which conviction he appealed to the district court of Shawnee county, where, on October 11, 1889, he was tried, and again convicted, and fined $30 and costs. From this last conviction and judgment he appeals to this court, and alleges that the complaint and warrant upon which he was arrested do not charge an offense. Upon this question counsel for defendant says, that the prosecution was brought under § 21 of the city ordinance, and then proceeds to argue that the complaint fails to state a cause of action. The greater part of the defendant’s brief is occupied by the argument that'the complaint does not state a cause of action under said §21. But the city claims that the prosecution is under § 22 of the city ordinance, and the record shows that the case was tried in the court below upon the theory that the prosecution was had under §22. The court in its charge to the jury says the complaint is under § 22 of ordinance 861, and then quotes the operative words of the section. The case having been tried by the court below under §22 of the ordinance, we must treat the prosecution as having been brought under that section. That -part of § 22 of ordinance 861, as quoted by the trial court in its charge, reads as follows: “ If any person shall disturb the quiet of the city, he shall be punished by a fine of not less' than $3, nor more than $100.” Wé think the complaint charges an offense under §22. It charges a disturbance of the peace by the use of loud, profane and indecent language. The peace may have been disturbed by loud talk alone. But we also think to call a man “a damn fool and a bastard,” is the use .of indecent language, and the peace of the city may have been disturbed by the use of such language. The jury found the peace of the city was disturbed by the defendant.
The defendant alleges that the court erred in calling the jury back into the court-room and giving them additional instructions. The city contends that the court did not thereby commit error; and also, that if it did, the defendant did not except to the time and manner of giving the instruction, but only to the law thereof, and has not therefore saved the question he now urges in the brief. We think the exception is too general to raise the question argued by the counsel making it. The language of the exception is as follows: “To the giving of the above and foregoing instruction, and to all the • instructions, the defendant at the time duly excepted and excepts.” There seems to be no distinction between the character of the exception to the last instruction and that which relates to the other instructions. There is nothing in the language of the exception to the last instruction different from that in the exception relating to the other instructions, and nothing in the language of the exception that indicates any objection to the time or circumstances under which it was given. We do not think the attention of the court was called to the fact that the objection was to the time of giving the instruction and the circumstances under which it was given. There is nothing in the record showing that counsel for defendant desired to reargue the case to the jury after the last instruction was given. If he had asked such privilege and it had been accorded him, no error could have been assigned on account of such instruction. Inasmuch as the counsel was present when the last instruction was given, and did not indicate to the court after it was given his desire to reargue the case, so far as affected by said instruction, it is a serious question whether he did not by his silence waive his right. But we think no proper exception was saved as to the time of giving the objectionable instruction, and therefore the alleged error in connection therewith is not available.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
An explosion occurred on November 9, 1888, in Erontenac mine No. 2, owned and operated by the Cherokee & Pittsburg Coal & Mining Company, whereby Daniel Limb, an employé of the company, was killed. He was an unmarried man, and left surviving him David Limb and Hannah Limb, his parents, next of kin and heirs at law. This action was brought by John Limb, as administrator of the estate of Daniel Limb, deceased, against the company, for the benefit of his parents, to recover damages for the pecun iary loss which they sustained by his death. It was alleged in the petition that the death was caused by the negligence of the company in permitting the accumulation in the mine of dry, inflammable, combustible and explosive coal dust, which was communicated with by a blast of powder, causing a general explosion and the killing of Limb, who was at work in the mine, and who was then in the exercise of due care. The company denied the allegations of the petition, and contended that Limb’s death was caused and materially contributed to by his own negligence. The trial resulted in a verdict in favor of the plaintiff below for $1,500. At the trial testimony was given tending to show that dry coal dust is a dangerous and explosive element in a mine, and that the danger may be allayed by properly sprinkling the mine with water. Some testimony was offered which tended to show that the persons in charge of the mine were aware of the dangerous character of the dust, and had sprinkled the mine to some extent, but had not done so sufficiently to prevent the explosion. The testimony of the company was in direct conflict with that produced by the plaintiff below, and tended to show that coal dust is not an explosive, and that the company and its managers were not negligent, as charged, and.that the injury and accident were caused by the explosion of large quantities of gunpowder, carelessly ignited by Limb or some other of the miners. The explosion which caused the death of Daniel Limb is the one referred to in the case of the Cherokee & Pittsburg Coal & Mining Company v. Richard Wilson, administrator, etc., just decided. The testimony respecting the condition of the mine, the explosion, its origin and effects, and the knowledge of the company in regard to the dangerous character of coal dust, and what was necessary to overcome the danger, and also in regard to its want of care, is substantially the same as in the Wilson case. It was there held that the testimony, though not full or satisfactory, was sufficient to take the case to the jury; and it must be so held in this case. Hence it cannot be held that the court erred in overruling the demurrer to the evidence of plaintiff below, or in failing to direct a verdict in favor of the company. Several errors are assigned on the admission and rejection of testimony. It is unnecessary to make special reference to these. We have examined them with care and find that the exceptions cannot be sustained.
It is contended that the verdict is excessive, and unsupported by testimony showing that the next of kin sustained pecuniary loss by the death of Daniel Limb. In. this respect there is a fatal lack of testimony. It is not shown that the parents of the deceased ever received any support from him, nor that they .were dependent upon him to any extent for support or assistance. Neither is there any evidence in the record to show their pecuniary condition. There is testimony showing that he was a robust man, who at the time of his death was capable of earning $80 per month, and one witness stated that he contributed to the support of his parents, but this statement turned out to be hearsay only, and no competent proof was offered that he ever contributed to their support, nor that the continuance of his life would have been of any pecuniary benefit to them. A witness stated that at one time the deceased borrowed $20 in order to make up a $100 sum which he proposed to send to his father, in Ohio, and that an order for that amount was inclosed in a letter addressed to his father, but the witness did not know whether the letter was ever mailed or sent to the father, or whether the father ever received the letter, and the defendant in error did not undertake to supply this necessary proof. This is an action for compensation only, and no damages can be recovered by the plaintiff below except for the pecuniary loss which the parents sustained by the death of the son. The burden was on the administrator to show that loss occurred. If there was no evidence that his life had been of actual benefit to the parents, or that any benefits might be reasonably expected by the continuance of his life, then no more than nominal damages could be recovered. (Railroad Co. v. Weber, 33 Kas. 543.) There must have been evidence either of actual benefits or those in expectation before the jury cau give substantial damages; and an attempt to assess such damages without proof would be to indulge in mere conjecture, which is not permissible. If the son had contributed anything in the past, there would be grounds for the expectation that he would have continued to contribute in the future; or if the son was a minor, the parents would have a legal right to the services of the son during his minority; but after majority, no such legal right exists, and the benefits thereafter would depend upon the capability of the son and his disposition to confer benefits on his parents. It is not shown that Daniel Limb was a minor, but it appears that he lived apart from his parents, was of full age, grown up, and capable of earning fair wages. The right of the parents to recover in such a case, and the nature of the proof required, was quite fully discussed by Mr. Justice Brewer in Railway Co. v. Brown, 26 Kas. 443. It was there said:
“It is not the loss of the decedent, but the loss of the survivors, which is to be estimated. That involves not merely the probable accumulations of the deceased, but the probability of the benefit of such accumulations inuring to the survivors. Where one who was the head of a family with minor children is killed, there is a reasonable certainty that his earnings if he had survived would inure directly to the benefit of the widow and children. ■ When one dies without wife or child, with no one legally dependent upon him, and with only remote relatives as his next of kin, there is only a remote probability that his earnings, whatever they may be, would inure to such next of kin. . . . Where the deceased, leaving no wife nor child, leaves as his next of kin father or mother, and such father or mother is in good pecuniary condition, it is fair to say that his life would if survived have been of comparatively little value to them. In other words, his earnings would be used for his own pleasure or profit, and not go to the increase of their present good financial condition.”
Whether the parents of the deceased are wealthy or dependent, or whether they were in the habit of conferring upon or receiving benefits from the deceased, does not appear. For all that is shown, they may be in good financial condition, without any necessity of help from their son, or any likeli hood of pecuniary advantage by his continued existence. If they had received any portion of his earnings, or if there was any reasonable probability of pecuniary benefit from the continuance of their son’s life in the future, it could easily have been shown. In the absence of proof showing that the parents suffered a pecuniary loss by the death of their son, the allowance made in the verdict is clearly excessive. For this error there must be a reversal of the judgment, and a new trial.
Judgment accordingly.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was commenced by George W. Hotz before a justice of the peace of Meade county, to recover damages alleged to have been sustained by reason of the failure and neglect of the Chicago, Kansas & Nebraska Railway Company to construct and maintain cattle-guards where its line of railroad entered and left his land. A judgment was rendered against the railway company before the justice, and an appeal taken to the district'court. In that court, judgment was rendered against the railway ■ company for $30. The company excepted to the judgment, and brings the case here. Upon the trial, the court gave the following instruction, among others, to the jury:
“If you should find from the evidence that the plaintiff used such inclosure for a cattle pasture, and that by reason of the refusal and neglect of the defendant to make proper cattle-guards at the points designated in the foregoing instructions, any of his cattle escaped from the pasture at the point where defendant’s road enters such pasture, or at the point where defendant’s road leaves such pasture, and wandered away from such pasture into a mire-pond, sink-pond, or slough, and there died, then it will be your duty to determine from the evidence the value of such animal or animals so dying, and return a verdict in favor of the plaintiff therefor.”
The only evidence embraced in the record to which this instruction could in any possible manner apply is the following' from the plaintiff below:
“ Ques. Describe the land that you owned and possessed before the building of the Chicago, Kansas & Nebraska railway through this county. Ans. The northeast quarter of section 15, township 31, range 27 west.
“Q. Now state what improvements, in reference to buildings, fences and other things you had on this land before the Chicago, Kansas & Nebraska Railway Company built this line of road through this county. A. I had it fenced, and was using it for a pasture.
“Q,. Describe what kind of a fence it was. A. It was a three-wire fence.
“Q. State what the Chicago, Kansas & Nebraska Railway Company did with reference to passing through that land while they were building their road. A. They cut the fence open and built the road through.
“Q,. Did they leave it open? A. Yes, sir; they left it open.
“Q,. When was the Chicago, Kansas & Nebraska railway built through this county, and over the land that you have described? A. They went through about the 1st of February, 1888, I believe.
“Q,. Now, how long after the Chicago, Kansas & Nebraska Railway Company bhilt through that 'field or close that you have described did they build any cattle-guards? A. They put the cattle-guards in about the 1st of July.
“Q. Of what year? A. 1888.
“Q,. Now, Mr. Hotz, you may state to the court and jury in what particular way you were damaged by reason of the railroad’s failure to build cattle-guards when entering your land and leaving it. State all about it. A. Well, I had to herd the cattle — that is, in the beginning; in the early spring I had to keep them in the corral, and had to feed them. After my feed run out, I had to herd them in the pasture to keep them from going out.
“Q,. Tell the court and jury all about it; how much herding you did. A. Well, it took time to herd them from about the 1st of April to the 1st of July, and there was one cow that strayed out, and got into the creek and died.
“Q,. Now, you may state the value of that cow. A. She was appraised at $40.
“Q. State what was the value of that cow. A. She was worth $30.
“ Q. Now, Mr. Hotz, you tell the jury all about how that cow happened to stray out of your field and from the railway track, and why. Tell all about that. A. She strayed out on Sunday; the boy was herding the cattle and had to go home to dinner, and while he was at the house for noon the cow got out, and got into the creek and mired down.”
Upon the evidence introduced, the instruction was misleading and erroneous. The evidence does not show clearly that the cow escaped at the point where the railroad entered or left the pasture; but if it does, there is no evidence tending to show there was any pond or slough near or close by the pasture. The evidence is that the cow got out of the pasture and into a creek and mired there. The words “ mire-pond, sink-pond, or slough ” were not used in the evidence. There was no evidence showing where the creek was situated, excepting that it was outside of the pasture. It might have been one mile, two miles, five miles, or further away. The death of the cow in the creek might have been something extraordinary and not to be expected; this would be the case if the creek was a great or a considerable distance away from tlie pasture.- If the creek was the proximate cause of the cow’s death, then the railway company is not liable. (Fales v. Cole [Mass.], 26 N. E. Rep. 872.)
The judgment of the district court will be reversed, and the cause remanded.
All the Justices concurring. | [
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Opinion by
Strang, C.:
July 20,1859, at Lawrence, Kas., Samuel S. Tipton received from Isaac Warner three land warrants of the value of $320 and $180 in money, to use in locating land in Kansas for the benefit of Isaac Warner, with the understanding between said Tipton and Warner that, if said Warner was not suited with the land selected by Tipton, Tipton should pay him his money back, including $320 for the warrants, in one year, with interest at the rate of 10 per cent. Tipton located said warrants upon lands in Anderson and Coffey counties, Kansas, in his own name. He never deeded any of said- lands to Warner, but on the 22d of March, 1880, he deeded 120 acres of the land to the defendant Catherine Mooney for $600, and on the next day deeded 80 acres of said land to W. H. Reed for $475, who subsequently conveyed the same to the defendant Amanda Stout. Tipton still held the balance of said land in his own name at the commencement of this suit, but afterward, on the 6th of March, 1886, he mortgaged said land to N. P. Garretson, one of the defendants, for the sum of $1,000. Tipton never paid Warner any of the $180, nor anything for said warrants. The cost of locating said land, and the taxes on the same prior to the commencement of this suit, amounting to $846.52, were paid by Tipton, and none of said amount has been paid by Warner to Tipton. August 24, 1885, in response to a letter from Warner inquiring about the transaction, Tipton wrote as follows to Warner:
“Yours came to hand a few days since, and as I am very busy and thought to write you every day, but it rained to-day and stopped me from haying. I take this opportunity of saying that I entered three pieces of land and kept them as long as I could, for taxes were eating me up, and I was obliged to sell, but if you will come out here I think we can come to some understanding with regard thereto and get all right.”
In response to said letter Warner came to Kansas, called on Tipton, and demanded deeds to the land, which were re fused by Tipton. The defendant Tipton answered to the amended petition, and the case was dismissed as to the other defendants. The answer was, first, a general denial, and second, a plea of the statute of limitations. The case was tried by the court without a jury, the court making the following findings of fact:
“1. In 1859, and ever since, the plaintiff was and remains a resident of Illinois, and the defendant is and for many years has been a resident of Kansas.
“2. On the 24th of August, 1885, the defendant wrote, signed and mailed to the plaintiff the letter of that date set out in the petition, in response to one inquiring about said land warrants, land, and money. The plaintiff received said letter and thereupon responded thereto by going in person to Kansas, called upon defendant and made the election and demand stated in the third paragraph of the agreed facts.
“3. All of these lands until sold were wild, vacant and unoccupied, and that tract remaining unsold is still in that condition.”
Upon said facts and the admissions contained in the agreed statement of facts, the court found the following conclusions of law:
“1. The lands so located by defendant became and were at the plaintiff’s option the property, in equity, of the plaintiff. The legal title was held in trust by the defendant, who had a lien thereon for the taxes paid by him, and who is chargeable with the $180 advanced in 1859, and the proceeds of the sales and mortgage of the lands, as set forth in the agreed statement.
“2. The $180 should be applied upon the taxes first paid by defendant, and the balance of said taxes, with interest at 7 per cent., should be deducted from the money so received from the sale and mortgaging of said lands, with interest, and the remainder, to wit, the sum of $2,204.69, should be recovered by the plaintiff from the defendant with costs.
“3. The plaintiff should also have judgment for the conveyance to him of the tract remaining unsold, subject to the $1,000 mortgage thereon. Judgment will be entered accordingly.”
Motion to set aside the findings of fact and conclusions of law and grant a new trial was overruled, and judgment entered as follows:
“4. It is therefore ordered and adjudged and decreed, that the said defendant Samuel S. Tipton, within 30 days from the rising of this court, execute and deliver to the said plaintiff, Isaac Warner, a good and sufficient deed, with covenants of general warranty,, conveying the premises in the said petition described, to wit: The east half and the southwest quarter of the southwest quarter of section 15, township 20, of range 17, in Coffey county, Kansas, to the said Isaac Warner in fee-simple, subject to the mortgage of $1,000 above described; and in default of the execution and delivery of such deed as aforesaid by the said defendant, it is ordered that this judgment and decree shall have the effect and operation of such conveyance, so as to vest the title to the said premises in the plaintiff in fee-simple.
“ 5. And it is further ordered, that the said plaintiff, Isaac Warner, recover against the said defendant Samuel Tipton the said sum of $2,204.68, his damages in form aforesaid assessed, and also his costs in and about his action in this behalf expended, taxed at $-, and in default thereof that execution issue therefor.”
This judgment was excepted to, and the case is brought here for review. The first error complained of is the action of the court in overruling the objection of the defendant below to any evidence under the petition of the plaintiff, for the reason that it did not contain facts sufficient to constitute a cause of action. The contention of the counsel for the plaintiff in error in connection with this assignment is, that the case is an action for the recovery of money, and that the petition shows upon its face that the cause of action is barred by the statute of limitations. This court is of the opinion, however, that the statute did not commence to run until September, 1885, when Warner came to Kansas, and for the first time demanded of Tipton a settlement, and an accounting under his trust. Until Warner elected whether he would take the land selected by Tipton for him, or receive back his money and interest, Tipton was not in default, and therefore the statute would not commence to run until Warner made such election and demand, in September, 1885. This action was commenced in January, 1886, less than one year after the election and demand of Warner were made, so that the statute had not run, and the cause of action, was not barred when the suit was begun.
The second error complained of relates to the conclusions of law of the court, and the judgment entered thereon. The contention in connection with this point is, that the pleadings disclose an action for the recovery of money, and that the court in its conclusions of law, and its judgment thereon, treated the case as an action to declare a trust and enforce the execution thereof. The petition might have been treated as a claim for the recovery of money, and we think it would have stated a cause of action as such, but it also contains many of the elements of a petition in an action to declare a trust and for the enforcement of the same. And the evidence shows that Tipton received the land warrants and money-from Warner to locate land for the benefit of Warner. The following receipt is conclusive upon this point:
“Received of Isaac Warner land warrants as follows: Number 45311, containing 80 acres, and one containing 120 acres, numbered 94746, and one containing 120 acres, number 21375, and $180, to use in the location of land in Kansas territory for the use and benefit of said Isaac Warner; that, if said Isaac Warner is not suited with Tipton’s choice of location, said Tipton agrees to pay said Warner 10 per cent, per annum at the end of one year, with principal.
“This July 20, 1859. Samuel S. Tipton.”
This receipt is also made a part of the petition. The petition also alleges that in September, 1885, Warner called on Tipton, in Anderson county, Kansas, for the sole and express purpose of settling with him, Tipton, the matters in connection with and growing out of the land warrants and money Tip-ton had received from him, and that Warner then demanded deeds for the land located by Tipton with the warrants and money received by Tipton from him. The evidence supports this allegation of the petition. The petition is not, perhaps, as full and complete as it should be to constitute an action to declare and enforce a trust against Tipton, but as the evidence is sufficient to support such a cause of action, and also to sup port the judgment of the court, and as the petition might have been amended to conform to the evidence, this court will not reverse the judgment of the court below, but will consider the petition as having been amended to conform to the facts proved .and the judgment of the court. (Civil Code, §139; Railroad Co. v. Caldwell, 8 Kas. 244; Yandle v. Crane, 13 id. 344; Bailey v. Bayne, 20 id. 657; Gas Co. v. Schliefer, 22 id. 470; Grandstaff v. Brown, 23 id. 178; Hummer v. Lamphear, 32 id. 475; Organ Co. v. Lasley, 40 id. 521.)
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action as on quantum meruit to recover for services rendered by plaintiff in connection with a lease on real estate. Judgment was rendered in favor of the defendants on their motion for judgment on the pleadings, and plaintiff appeals.
Insofar as this action is concerned, the interests of the defendants, EL Y. Wheeler and The Midland Building Company, are the same, and hereafter reference will be made to Wheeler only.
Plainitff’s petition alleged that early in 1937 Wheeler requested plaintiff to obtain a lease or leases for him from Sears, Roebuck & Co., or others, on certain real estate in Wichita, Kan.; that defendant desired to construct a building or buildings on the site providing he could find a lessee therefor, and asked plaintiff to obtain a lessee; that plaintiff has been in the occupation of obtaining leases and was well acquainted with the officials of Sears, Roebuck & Co., and in order to procure a lease on defendant’s property he informed the company of defendant’s desires, and proceeded, as set out in detail in the petition, to bring the parties together, resulting in a lease dated July 13, 1938, for a building 55 by 147 feet, two stories in height, at a monthly rental of $900, plus a bonus if the sales exceeded a certain amount per annum. It was further alleged that shortly thereafter an additional building 35 by 147 feet, was erected, of such nature as to make one building 90 by 147 feet, and on July 13, 1939, the lease was modified so as to expire November 1, 1954, rentals being increased to $2,125 per month, with a further payment if sales exceeded a stipulated amount, the total rent being $390,600, exclusive of the additional payments on account of sales. It was further alleged that the lease and the lease as modified and extended were entered into by reason of plaintiff's procuring the company as a lessee, and that plaintiff performed the work at the special instance and request of Wheeler; that after plaintiff brought the parties together, defendant and the lessee executed the first lease on the 55-foot building and the next or modified lease covering the 35-foot building upon terms agreeable to them, leases being signed and delivered at a time and place plaintiff could not designate, as he was not notified, but that the leases were satisfactory to the parties, the buildings had been fully completed and were occupied by the lessee. We need not detail the allegations setting up plaintiff’s claim of reasonable value of his services, totaling $7,947.50, for which he sought recovery.
Wheeler’s answer set up three alleged defenses and had attached to it a number of exhibits. Each defense as stated made preceding defenses part thereof. Briefly stated, the first defense admitted defendant’s ownership of the real estate and the execution of the first lease, but neither admitted nor specifically denied that plaintiff was the procuring cause of its execution. He alleged that as early as 1935 he attempted to interest Sears, Roebuck & Co. in leasing all or a portion of his particular real estate and that he employed a real-estate broker in Kansas City to carry on negotiations for a three-story building for a term of thirty years at a rental of approximately $30,000 per year; that in the latter part of January, 1937, plaintiff represented to defendant that he could successfully consummate the contemplated lease and on that date was employed in writing for that purpose; that thereafter the contract was mutually terminated by the parties, and about July 29, 1937, at a time when no written or oral agreement as to employment or compensation existed between plaintiff and defendant, defendant met representatives of Sears, Roebuck & Co. and discussed proposals for a lease, subject to approval by officers of the company, for a building three stories high, 90 by 147 feet, for a thirty-year term, at an annual rental of $31,000; that thereafter plaintiff and defendant discussed the commission to be paid plaintiff if the proposed lease should be consummated, and pursuant thereto executed an agreement, dated July 30, 1937, which provided that defendant should be liable to plaintiff for a commission “under the conditions herein stated and not otherwise” in the sum of $10,000 payable as specified. Defendant’s liability was—
“Contingent upon the following conditions: That the lease now in negotiation shall actually be consummated, signed, executed and delivered by the parties, and if said lease is not so executed, whether it be the fault of either the lessor or the lessee, no commission or liability for commission shall exist on the part of said 'owner’ (defendant) . . . The ‘broker’ (plaintiff) accepts the conditions of this agreement in lieu of and in full compensation for his services in connection with said lease . .
(It may here be said this agreement was previously before this court and is set out in full in Morgan v. Wheeler, 150 Kan. 667, 669, 95 P. 2d 320.) It was further alleged that it was the understanding of the parties to the above contract that plaintiff should be paid only in the event the lease then being negotiated should be actually consummated, and if not so consummated, no commission whatever should be due to plaintiff; that the lease then in negotiation was never signed, executed and delivered, the transaction was never consummated, and no lease was ever executed between the company and the defendant which embraced the terms, conditions and provisions of the lease which the parties had in contemplation when the contract of employment was executed.
For his second defense defendant alleged that plaintiff had brought two certain actions in the district court of Sedgwick county, Kansas, against the defendant in the present action to recover commissions allegedly due on the contract for compensation above referred to; that those actions were tried together, at which trial the defendant endeavored to compel plaintiff to elect whether he sued on the written contract or as on quantum meruit; that at such trial the trail court had made certain findings of fact and of law from which the plaintiff had not appealed; that plaintiff had litigated his alleged rights in the two actions, and having relied upon performance of a written contract, may not now abandon such claims, but is bound thereby and not now entitled to recover in an action as on implied contract or as on quantum meruit or otherwise; that plain tiff did not perform the contract sued on, and the lease then in negotiation was never consummated; that after judgment was rendered in the district court defendant appealed to the supreme court, in which court plaintiff contended he had performed his contract; that plaintiff relied upon the written contract; that the appeal was disposed of in the supreme court by decision in Morgan v. Wheeler, 150 Kan. 667, 95 P. 2d 320, and in the case it was determined plaintiff’s action was founded upon and he had elected to rely upon a written contract; that he had failed to perform and was not entitled to recover. Copies of pleadings, findings, etc., were attached as exhibits.
The third defense was that the matter was res judicata, and that plaintiff should not be permitted to shift his position and to rely upon a theory of recovery as on implied contract or as on quantum meruit, etc. There being no contention that the reply put in issue any matter hereafter discussed, the reply will not be noticed.
Defendant’s motion for judgment' on the pleadings was sustained and this appeal followed. The record as abstracted does not reveal that the trial court disclosed any specific reason for its judgment. The briefs cover matters raised under the three defenses, and as discussed will be mentioned as far as need be.
In substance, the first question is whether the plaintiff, having been defeated in his action to recover on his written contract (see Morgan v. Wheeler, supra) may now maintain an action to recover as on quantum meruit — or is the relief he sought in the present action consistent with that sought in the first, or inconsistent so that he was bound by an election of remedies in bringing the first action. Appellant directs our attention to Clifton v. Meuser, 88 Kan. 408, 129 Pac. 159, as being directly in point. Briefly stated, there Mrs. Potts had delivered a sum of money to Mrs. Clifton. Mrs. Potts instituted suit to recover, but died, and the action was revived in the name of and continued by her executor. Mrs., Clifton defended on the ground she had an express contract with Mrs. Potts for services and the moneys were in payment therefor. The trial court instructed the jury that unless they found that the agreement had been made and the service performed, they must find against Mrs. Clifton. That result followed. Thereafter she filed her claim against the estate for >the reasonable value of her services. Her claim was allowed in the probate court and denied on appeal to the district court, which held the matter had been adjudicated in the first action. This court reversed, calling attention to the fact the jury in the first action may have believed plaintiff performed no services, although it was equally tenable the jury were of the opinion that no agreement had been made, and holding—
“Where one who has received money from another contends that it was given him under an express contract, in-consideration of services which he after-wards performed, but is defeated in that contention in an action brought against him for the recovery of the money, he is not thereby precluded from maintaining an action upon an implied promise to pay the reasonable value of such services as he had rendered.” (Syl.)
Appellant also directs our attention to Darnell v. Haines, 119 Kan. 633, 240 Pac. 582. In that case one Earl made an agreement to give Mrs. Darnell certain lands by will on performance of conditions. Earl died and Mrs. Darnell filed a claim in probate court based on implied contract, which was not allowed. She appealed and in the district court dismissed her action without prejudice. Thereafter she commenced an action for specific performance of a parol contract to will the land to her. The defense was she had previously chosen an inconsistent remedy. In holding that she had a cause of action, this court said:
“This court is fully committed to the doctrine that a suit on an implied contract to pay the reasonable value of services rendered, does not deny existence of an express contract to pay a definite sum for the same services; that action on one theory is not incompatible with recovery on the other, notwithstanding the difference in proof and measure of recovery; that both theories may be tendered as grounds for recovery in the same action; and that, although there can be but one recovery, plaintiff may not be required to elect, but may go to the jury on both. (Berry v. Craig, 76 Kan. 345, 91 Pac. 913; Wiley v. Locke, 81 Kan. 143, 105 Pac. 11; Clifton v. Meuser, 88 Kan. 408, 129 Pac. 159; Brigham v. Carpenter, 110 Kan. 104, 202 Pac. 976.)” (p. 635.)
Other decisions and authorities to like effect are also cited. It may not be doubted they express a rule generally recognized in this state, but application of it to the situation here remains to be examined.
Appellant contends there was no inconsistency between his action to recover on the written contract, on which he was defeated not because of failure to prove the contract but because he failed to prove he had performed it, and his action subsequently filed to recover as on quantum meruit, and, in addition to cases previously mentioned, directs our attention to Berry v. Craig, 76 Kan. 345, 91 Pac. 913, a case dealing with real-estate commissions. Mrs. Berry owned lands and through her general agent Boyce, one Craig undertook to find her a purchaser. Through his agents two men were interested, but the particular deal was not completed. Later one of them purchased directly through Boyce. Craig sued for a commission, his petition alleging two counts, one on express contract, and one as on quantum meruit, and defendant’s motion to require an election being denied, the cause was submitted to a jury on each claim. The jury found there was an express contract. On appeal to this court, the ruling on election was held to be correct, it being said:
“The two counts were entirely consistent. Neither contradicted the other. The facts stated in the first might be true and the facts stated in the second also might be true. If an express contract existed, recovery could not be had upon an implied contract; but to meet possible exigencies of the proof the plaintiff had the right to go to the jury upon both sets of allegations.” (p. 346.)
It is to be observed that in the above case the employment was general and the agent was only to procure a purchaser. The above case is fairly illustrative of the type dealing with liability of owner to agent employed to find k purchaser ready, willing and able to buy. The general rule enunciated in such cases, however, is subject to exceptions.
In Fultz v. Wimer, 34 Kan. 576, 9 Pac. 316, it appeared that Wimer in writing authorized Fultz to sell certain lands, he being given two months to perform, the time being later extended for ten days. Fultz took Galli out and showed the land and introduced him to Wimer. No deal was made within the contract period, but later Wimer sold the land to Galli. Ignoring the written contract, Fultz brought suit to recover the value of his services. The defendant answered, setting up the written contract and contending that as Fultz did not perform under it he was not entitled to anything. In the district court a demurrer to plaintiff’s evidence was sustained and he appealed. This court held that Fultz was bound by his contract. In the course of the opinion, it was said:
“It is doubtless true that Fultz was instrumental in enabling the defendant to sell his land, but as Fultz and Wimer had entered into written stipulations as to the terms upon which Fultz was entitled to commission, these stipulations must control. . . . After the extension of the contract had expired, Wimer had the right to sell to Galli or to anyone else; and under the written contract he was not liable to pay to Fultz his commission, or any other sum, because, after the expiration of the extension of the contract, the contract had spent its force. (Coleman v. Meade, 13 Bush, 358; Charlton v. Wood, 11 Heisk. 19.) If the delay in closing the sale between Galli and Wimer had been caused by any negligence, fault or fraud of Wimer, Fultz would be entitled to his commission, but the evidence shows nothing of this kind. Wimer acted in the best of faith and was very desirous, being over-anxious, for Fultz to produce a cash purchaser upon the terms prescribed in the written contract.” (p. 580.)
The question was again before this court in Karr v. Moffett, 105 Kan. 692, 185 Pac. 890, where Moffett authorized a sale at a price of $35 per acre net to himself, which he refused to lower. Karr’s efforts to sell were not successful, but later Moffett, who was not aware of his agent’s effort, sold the lands to Anderson for $35 per acre. Other facts disclosed will not be set forth. Karr brought suit to recover the customary commission and was allowed a recovery in the trial court. Moffett appealed to this court, which reversed the trial court, holding the contract for a commission was specific, and the service to be rendered in order to earn the commission was specific, and that plaintiff had not performed, it being said:
“In arriving at this conclusion the court is not unmindful of its long-established, liberal attitude towards the rights of real-estate agents who bring buyer and seller together, whereby a bargain is effected, although not upon the terms originally given to the agent. (Ratts v. Shepherd, 37 Kan. 20, 14 Pac. 496; Plant v. Thompson, 42 Kan. 664, 22 Pac. 726; Grimes v. Emery, 94 Kan. 701, and citations, 146 Pac. 1135.) The case before us is circumscribed by the terms of the specific contract under which — and only under which— the defendants were to be obligated (Fultz v. Wimer, 340 Kan. 576, 9 Pac. 316); and here, also, there is no element of bad faith on the part of the defendants in dealing independently with Anderson, the purchaser.” (p. 695.)
and the court holding:
“The ordinary rule that a real-estate agent is entitled to his commission when he procures a purchaser who is ready, willing, and able to buy, or when he brings a buyer and seller together, who make a bargain on different terms than those theretofore dictated to the agent, does not apply where the agent’s commission is governed by a special contract between him and his principal.” (Syl. ¶ 2.)
A rehearing was denied in the above case by opinion reported in Karr v. Moffett, 106 Kan. 379, 187 Pac. 683, wherein it was said:
“The proof of existence of the special contract was surely an effective way of disproving that the defendants owed the plaintiff for services under an ordinary real-estate dealer’s contract, such as would entitle the agent to the usual commission when he had brought buyer and seller together whereby* they consummated a sale on terms agreeable to each other — 'when he had been the procuring cause of the sale,’ as the stock phrasing in such cases is expressed.” (p. 380.)
And see Wenkheimer v. Hager, 129 Kan. 518, 283 Pac. 489, and Dowling v. Wheeler-Kelly-Hagny Trust Co., 152 Kan. 322, 103 P. 2d 866, where the Karr case is followed. That there was a contract in writing specifying the amount of commission and the conditions under which it was to be due is admitted by the pleadings. That contract differed from those considered in the above cases in that it expressly provided the owner was liable to the agent only when a certain lease (which was never executed) had been consummated, and that if it was not, whether through fault of either lessor or lessee, no commission or liability for commission should exist.
Appellant seeks to avoid the force and effect of Karr v. Moffett, supra, and like cases and authorities by calling attention to the statement above quoted that there was no element of bad faith on the part of the owner, and by contending that in the case at bar he had pleaded bad faith on appellee’s part. Giving to his petition a most liberal construction, the only possible bad faith charged is that the lease actually made was signed at a time when the agent was not present. It was not charged in any way, either by statement of fact or by bold conclusion, that anyone did anything of any character to prevent execution of the proposed lease, which, if it had been consummated by execution, delivery, etc., would have entitled plaintiff to- a commission. Bad faith might have entered there, but the fact that a lesser lease was executed than the one being-negotiated does not in or of itself show bad faith. The provision of the contract that failure to execute the proposed lease (never executed) “whether it be the fault of either the lessor or the lessee” absolved the owner from liability to the agent, was not to open -the door to permit fraud, but it was an indication that in fair dealing that particular lease might never be consummated. A careful examination of plaintiff’s third amended petition, on which the cause was submitted, shows no fraud was pleaded.
We are of the opinion the pleadings disclose the existence of a specific contract limiting appellant’s right to recover any commission from the appellee; that he previously proved the existence of the contract, but failed to prove performance under it, and that he may not now seek to recover for services as on quantum meruit. "Our conclusion makes it unnecessary to discuss other matters presented in the briefs.
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The opinion of the court was delivered by
Dawson, C. J.:
The defendant corporation is in a receivership (State, ex rel., v. Wheat Farming Co., 137 Kan. 697, 22 P. 2d 1093), the duration of which has been protracted owing to litigation in the federal courts (Lillard v. Lonergan, 72 F. 2d 865; id., 293 U. S. 615, 79 L. Ed. 704), and by financial difficulties and other complications of its business affairs, and by the presently unmarketable character of its fragmentary assets which chiefly consist of western Kansas lands.
The particular matter of present concern pertains to the claims of some “secured” common stockholders which are resisted by the preferred stockholders, to an understanding of which the facts must be stated at some length.
It appears that prior to September 28, 1927, the nominal capital stock of defendant was $150,000, divided into fifteen hundred shares of $100 each. Whether any such stock had been issued does not appear, but if so it can be presumed that it was surrendered and canceled. On that date the incorporators or stockholders adopted a resolution which provided that the capital stock should be divided into 150,000 shares of no par value “to be sold not to exceed one dollar per share.” This resolution of September 28, 1927, was filed as an amendment to the charter and approved by the state charter board on January 5, 1928.
On January 17,1928, a resolution of the stockholders was adopted which provided for an increase of its capital by an issue of 3,000 shares of preferred stock of the par value of $100 per share, the dividends of which should not exceed 7 percent, and having the usual preferential participation in the assets of the company in case of insolvency or dissolution. This amendment was approved by the charter board on January 18, 1928.
Pursuant thereto, and upon some showing to the bank commissioner, on February 29, 1928, a blue-sky permit was issued which authorized defendant to sell its common stock of no par value and 3,000 shares of preferred stock on the following terms:
“Common stock to be sold at a price of not to exceed $20 per share, preferred stock to be sold at a price of $100 per share. All stock to be sold for cash, or at least one-half cash, the balance in bankable notes ... or, to exchange said stock at the prices above named for real estate or exchange for the necessary equipment to develop the business of the company, and to pay a commission of not to exceed 20 percent of the cash actually received by the company payable only as and when such cash is received. This commission to include all overhead expenses for the sale of said stock.”
Under this permit, between March 3 and April 20, 1928, defendant sold 955.5 shares of its common stock at $20 per share. Be tween April 20 and August 1 it sold 3,113.9 shares of common stock at $20 per share in cash or its equivalent in property. To effectuate many of these sales the defendant devised and put into effect a scheme whereby certain purchasers of common stock at $20 per share received a guaranty that out of every $20 it would invest $6 thereof in investment certificates of various building and loan associations and deposit these with a bank in Kansas City, Mo., which agreed to act as escrow holder thereof; and defendant agreed with the purchasers thus favored that if in twenty years they did not receive in dividends a return of as much as the entire purchase price of their stock, the proceeds of such building and loan certificates held in escrow in the Missouri bank would be devoted to make up any shortage in such anticipated aggregate of dividends.
Many sales of common stock were made by defendant pursuant to the foregoing arrangement. Elaborate documents having as many asservations of fidelity as a negotiated peace with Hitler were executed by the purchasers favored with these attractive inducements— by the defendant company, and by the Kansas City, Mo., escrow holder. Of the common stock sold prior to April 20, 1928, the purchasers of 805.5 shares at $20 per share were given this special guaranty or security so called, and the purchasers of 150 shares at the same price received no such guaranty. Between April 20 and August 1, 1928, the purchasers of 1,661 shares of common stock were given this special guaranty, and the purchasers of 1,452.9 shares at the same price did not receive it.
The records of the corporation do not show any authorization for such an unusual discrimination between the purchasers of defendant’s common stock, and of course it was never given the sanction of the blue-sky board. What the minutes of the corporation do show is the following resolution of the board of directors, dated July 21,. 1928: v
“The matter of the guarantee for the common stock was brought up for consideration and after discussion it was decided to take off the guarantee beginning with August 1 and that after that date all common stock be sold without the guarantee.”
At the invitation of this court, counsel for the “secured” common stockholders and counsel for the opposing preferred stockholders have filed briefs on the legal questions involved, and an order must now be made directing the receivers as to the proper disposition of these building and loan investments or their proceeds as corporate assets of the defendant. It is obvious, of course, that if their proceeds are applied to the satisfaction of the guaranty given to the favored purchasers of its common stock, the capital assets of the company will be diminished to that extent; and there will be just so much less to distribute to the other stockholders when the corporation is completely wound up. The preferred stockholders have a prime interest in a correct decision of the legal question presented, for they may reasonably hope for an eventual partial return of their investment' — however remote a like prospect may be for the holders of the common stock who were not favored with defendant’s guaranty.
On behalf of the “secured” stockholders, it can fairly be said that so far as the record reveals they did not know that they were given any guaranty or inducement to purchase the stock which was not accorded to all other purchasers of similar stock.
While the charter as amended by resolution of December 28,1927, and approved by the state charter board on January 5, 1928, provided that the common stock was to be sold at “not to exceed one dollar per share,” the same state authority on February 29, 1928, gave defendant a permit to sell its common stock at a price “not to exceed $20 per share,” so we do not attach any present significance to the conflict between the provision of the charter and the terms of the blue-sky permit insofar as the selling price of the stock is concerned.
But what a corporation may lawfully do with the proceeds of the sales of its corporate stock is a matter of first importance to all concerned — to the state which sanctioned the creation of the corporation and defined its powers, and to its creditors, and ultimately to its stockholders. This defendant corporation had no authority to invest the proceeds of the sales of its treasury stock in the building and loan certificates of another corporation. As the law stood when the frenzied financiering of this defendant was being conducted, no corporation could invest in or otherwise acquire the securities of another corporation except for the purpose of protecting itself against loss. (R. S. 17-603, G. S. 1935, 17-603; Scott v. Bankers’ Union, 73 Kan. 575, 584-586, 85 Pac. 604; Sarbach v. Fiscal Agency Co., 86 Kan. 734, 122 Pac. 113; A. O. U. W. v. Hobbs, 136 Kan. 708, 709, 18 P. 2d 561; Central Life Securities Co. v. Smith, 236 Fed. 170; 14a C. J. 577; 7 R. C. L. 526-530.)
The original treasury stock of a corporation exists solely for the purpose of being sold to create a fund to be permanently devoted to the legitimate purpose for which its charter was granted. Consequently, any collateral agreement between defendant and a purchaser of such stock that part of the purchase price — as $6 out of every $20 — instead of becoming part of the corporation’s regular capital assets would be immediately diverted to another purpose entirely, that is, to the purchase of building and loan certificates of another corporation, and so remain for a period of twenty years, and that thereafter such extraneous investment or its proceeds would be devoted to make up any shortage in the anticipated dividends accruing to the favored purchasers of such stock, was illegal and void. (Bankers’ Union v. Crawford, 67 Kan. 449, 73 Pac. 79, 100 A. S. R. 465; Sarbach v. Fiscal Agency Co., supra; Wheat Growers Ass’n v. Rowan, 125 Kan. 710, 266 Pac. 101; Norton v. Lamb, 144 Kan. 665, 669, 62 P. 2d 1311; 13 Am. Jur. 349; id., 772; 18 C. J. S. 810; 4 Thompson on Corporations, 3d ed., § 2825, p. 525; Ballantine’s Manual of Corporation Law, 205.) And see the analogous cases of Smith et al. v. Alabama Fruit Growing & Winery Ass’n et al., 123 Ala. 538, 26 So. 232; and Jorguson v. Apex Gold Mines Co., 74 Wash. 243, 133 Pac. 465.
On behalf of the secured stockholders it is argued that the favored position given them by the collateral agreement was not a fraud on anyone. Why not? It unlawfully diverted a substantial portion of the cash capital of the defendant corporation. Every dollar of that cash capital is sorely needed now to minimize the losses of the stockholders who in good faith put their money in this ill-starred concern, and who had a right to assume that all the proceeds of the sales of the company’s treasury stock would be honestly devoted to the authorized business of the corporation. The case of Mitchell v. Beachy, 110 Kan. 60, 202 Pac. 628, is cited. But in that case it was sought to correct the misdeeds of the corporation and its olficers by persons who had parted with their interest in the corporation. This corporation is in custodia legis for the correction of its misdeeds, on the initiative of the state, and for the benefit of all concerned. (4 Thompson, supra, § 2900, p. 605.)
Recurring to the point that the charter as amended prescribed the selling price of the nonpar stock at “not to exceed one dollar per share,” whereas it was sold for $20 per share. It may be that there was a time when subscribers who paid $20 per share might have had an action to recover the excess (11 Fletcher, Cyc. Corp., Perm, ed., § 5252), but such recourse, if any, has long been barred by lapse of time.
The application of the secured stockholders that the proceeds of the building and loan investments of defendant be applied in accordance with the aforesaid guaranty is denied, and the receivers are directed to place the same in the general assets of the company to be disbursed or distributed as provided by law. | [
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The opinion of the court was delivered by
HoCi-r, J.:
This was an action to recover for permanent total disability under an accident and health insurance policy. Plaintiff prevailed, and defendant appeals.
Appellant contends that total disability was not shown, that ap-pellee had not complied with certain conditions in the policy, and that recovery was precluded by a release signed by the appellee. As to any conditions not complied with, appellee’s position was that they were either not binding or had been waived by the insurer.
Millard R. Hodgson, the appellee, was seriously injured on September 21, 1936, while working on the construction of the Topeka avenue bridge in Topeka. He was struck by a falling plank, fell approximately twenty-five feet, seriously injuring his foot, knee and one or more vertebrae. He was the holder of a policy issued by the appellant company which provided, among other benefits, for payment of $20 a month for a maximum of three months for partial disability, and $50 a month for total disability. The provision as to total disability is as follows:
“If such injuries as described in the insuring clause do not result in any of the above mentioned specific losses, but shall -wholly and continuously disable the insured for one (1) day or more, and so long as the insured lives and suffers said total loss of time, the association -will pay monthly indemnities at the rate of fifty ($50) dollars per month.”
Following the accident Hodgson was taken to the hospital, where he remained for many weeks. During that period and also while he was confined to his home the insurance company paid him $50 a month. On February 22, 1937, when another monthly payment was due, an agent of the company called upon him and a lump-sum settlement was made. At that time the company paid him for the month then due, for an additional month at the $50 rate, and for three months at the rate of $20 which was provided for temporary disability, making a total payment on that date of $160. Thereupon Hodgson executed a receipt and release as follows:
“In consideration of a settlement in advance of the date due and other valuable considerations and the sum of one hundred sixty . . . no/100 dollars, to me in hand paid, the receipt of which is hereby acknowledged, I do for myself and beneficiary, hereby release and forever discharge the Mutual Benefit Health & Accident Association of Omaha, Nebraska, of and from any and all liability under its policy No. 50S-38246 for and on account of any loss or disability directly or indirectly to any accident, accidents, sickness or disability occurring or commencing on or about the 21st day of September, 1936.”
Sometime later — apparently in 1939, though the record does not disclose the date — Hodgson brought an action on the policy in the Shawnee county district court alleging that as a result of the accident he was then and had been totally disabled, and asking recovery up to the time of filing the action at the rate of $50 a month with credit allowed for payments made. This action was dismissed without prejudice. Later, action was again brought and subsequently removed to the federal court. In this action judgment for $1,500 was asked in a first cause of action and in a second cause of action $17,340 to cover future payments based on petitioner’s life expectancy. Upon motion of the petitioner the second cause of action was dismissed in the federal court on January 25,1940, and the first cause of action was remanded to the district court of Shawnee county where issues were joined.
The answer denied generally the allegations of the petition and alleged that the insured had not complied with the terms of the policy in that he had not been attended by a physician at least once a week during the period for which total disability was claimed; that he had not furnished “proof of claim” as provided for in the policy; that he had not suffered “total loss of time” as alleged in the petition, but in fact had worked at various gainful occupations during much of the time covered by the claim; that he had filed a claim against the bridge construction company under the workmen’s compensation act and had received an award based on a finding by the commissioner of compensation for total disability for a period of twenty-two weeks, no appeal being taken from the commissioner’s award; and that the insured had, for valuable consideration, signed a release fully discharging the company from any further obligation on the policy arising from the accident.
In addition to a general denial, appellee alleged in his reply that while he had attempted to engage in various occupations, he had found in each instance that he was pl^sically unable to do so; that all conditions in the policy had been complied with and if any had not been complied with then compliance had been waived by the defendant company; that at the time the alleged release was executed, he, “the attending physicians, defendant, and defendant’s agents were mistaken as to the extent and permanency of the plaintiff’s injuries, in that they, and each of them, believed plaintiff had recovered from his injuries, and that he soon would be able to resume his work, when, in fact, and as it later developed, and was learned, plaintiff’s injuries were of such a serious nature that he then was, now is, and will continue to be permanently totally disabled, and he is now suffering and will continue to suffer total loss of time as a result of said injury. That at the time of the making of the alleged release, the issuing and cashing of the draft and the execution of the rider, neither the plaintiff nor the defendant, nor defendant’s agents knew or realized the seriousness and permanency of plaintiff’s injuries and that, as a result thereof, the said instruments were executed under a mutual mistake of fact as to matters materially affecting the rights and status of the parties concerned”; and that said release was without adequate consideration and was void.
Trial was had before a jury which found for the plaintiff in the sum of $1,840. The jury also answered special questions as follows:
“1. Did the plaintiff, Millard Hodgson, engage in the insurance business as a salesman after September 21, 1936? A. Yes, he assisted in the sale of three policies and made three other unsolicited sales.
“2. If you answer the preceding question in the affirmative, then state about when and for how long a period of time. A. For about three weeks just preceding March 19, 1937.
“3. Did the plaintiff, Millard Hodgson, purchase, manage and operate a grocery store in Topeka, Kansas, after September 21, 1936? A. Yes, he did purchase a grocery store but was physically unable to successfully manage and operate it.
“4. If you answer the preceding question in the affirmative, then state for how long he managed and operated said grocery store. A. May 15 to August 10, 1937.
“5. Did the plaintiff, Millard Hodgson, enroll and attend Strickler’s Topeka Business College? A. Yes.
“6. If you answer the preceding question in the affirmative, then state during what period of time he did attend said school. A. Regularly, September, 1937, to February, 1938, and irregularly, February, 1938, to July, 1938.
“7. Did the plaintiff, Millard Hodgson, work as night watchman and clerk for Paul Petty after September 21, 1936, in his grocery store? A. He was employed by Paul Petty after September 21, 1936, but was physically unable to perform duties of watchman and clerk.
“8. If you answer the preceding question in the affirmative, then state for how long a period of time plaintiff so worked. A. Three weeks.
“9. If you find that plaintiff worked for Paul Petty, what compensation did he receive, if any? A. 810 per week, total 830.
“10. Did the plaintiff, Millard Hodgson, work for Peterson’s Market as a night watchman and clerk after September 21, 1936? A. He was employed by Peterson’s Market after 9/21/36 but was physically unable to perform duties of night watchman and clerk.
“11. If you answer the preceding question in the affirmative, then state for how long he did work as such night watchman. A. Two weeks.
“12. If you find that Millard Hodgson worked for Peterson’s Market, what compensation did he receive, if any? A. 810 per week, total $20.
“13. Was the plaintiff, Millard Hodgson, after February 22, 1937, under the regular care and attendance of a licensed physician or surgeon at least once a week? A. No. Evidence shows this would have been futile.
“15. Has the plaintiff, Millard Hodgson, suffered a total loss of time since February 22, 1937? A. Yes.
“16. Did the plaintiff, Millard Hodgson, receive any benefits under his insurance policy after February 22, 1937? A. 810.83 for influenza.
“17. Did the plaintiff, Millard Hodgson, file with the defendant any proof of loss or claims for total loss of time for the period from February 22, 1937, to date? A. -No.
“19. If you find that plaintiff did not furnish defendant proofs of loss as required by clause 7 of standard provisions of the policy, then state: (o) whether defendant waived such furnishing of proof of loss; A. Yes. (b) what acts of defendant do you find constituted such waiver? A. (1) Defendant’s agent, Mr. Davis, in conversation with Mr. Hodgson at the latter’s home about January, 1939, stated in effect that defendant company had discharged its obligation under policy and that no further obligation existed as a result of accident occurring 9/21/36. (2) Admission of attorney Smith, in reference to previous suit, that the defendant had denied any liability at that time.
“20. Was the plaintiff disabled from performing one or more important duties after February 22, 1937? A. Yes.
“21. If your answer to the preceding question is in the affirmative, then state what one or more important duties ho was unable to perform by reason of his disability. A. Unable to lift heavy objects, remain on feet any length of time, climb or descend stairs with any degree of ease.”
We first consider appellant’s contention that oh the answers of the jury appellee was not totally disabled, had not suffered a “total loss of time” and that appellant was therefore entitled to a judgment notwithstanding the general verdict, and notwithstanding the answer “yes” to question 15.
While the jury found that appellee attempted to carry on in various lines of work, he found himself unable, in each instance, to continue to do so. (Answers 1 to 12.) The rule is well established that “total disability” within the meaning of insurance policies does not necessarily mean utter helplessness, nor inability to perform any task, or even in some cases, usual tasks for a limited period. (29 Am. Jur. 872, § 1161; 1 C. J. 466; 42 Words and Phrases, pp. 25-34.) To hold otherwise would be to penalize every effort of an injured or sick person to rehabilitate himself and thus incidentally relieve the insurance carrier. This question was dealt with by the United States Supreme Court in the very recent case of Berry v. United States (opinion filed March 3, 1941). The insured, under a war risk insurance policy, had been given vocational training in photography and also in auto repair work, but there was evidence that his efforts to continue in those lines were unsuccessful on account of his physical handicaps. He tried farming, operating a garage, selling cooking utensils and perhaps other employments, but always with like result. In holding that these various employments carried on for certain temporary periods but without ability to continue in them did not preclude recovery for “total disability,” the court said:
“It was not necessary that petitioner be bedridden, wholly helpless, or that he should abandon every possible effort to work in order for the jury to find that he was totally and permanently disabled. It cannot be doubted that if petitioner had refrained from trying to do any work at all, and the same evidence of physical impairment which appears in this record had been offered, a jury could have properly found him totally and permanently disabled. And the jury could have found that his efforts to work, all of which sooner or later resulted in failure, were made not because of his ability to work, but because of his unwillingness to live a life of idleness, even though totally and permanently disabled within the meaning of his policies.”
Appellant contends that our recent decision in Fricke v. Mut. Life Ins. Co., 152 Kan. 525, 106 P. 2d 677, is controlling, as against recovery, on the facts in the instant case. We cannot agree. The case is clearly distinguishable. While the insured in that case was perhaps unable to perform the manual labor on the farm that he could .perform prior to his accident, he was able to continue and did continue in the active management of his large farming operations. The court said: “There is an abundance of evidence that he managed, supervised and directed the operation of his farms and attended to all the business in connection therewith, and that this was a substantial business, successfully managed and conducted. The jury so found in answer to special questions 3, 4, 5 and 7.” (p. 529.) In the instant case the jury found that the insured attempted again and again to engage in gainful employment, but in each case had to quit, and was in fact totally disabled. There was ample evidence to support such finding.
It is next contended that by failure to have the attendance of a physician at least once a week during the whole period in question appellee was precluded by the terms of the policy from recovery for total disability. The pertinent provision of the policy is as follows:
“(a) This policy does not cover death, disability, or other loss sustained in any part of the world except the United States and Canada, or while engaged in military or naval service in time of war, or any act of war, or while the insured is not continuously under the professional care and regular attendance, at least once a week, beginning with the first treatment, of a licensed physician or surgeon, other than himself.”
In appropriate instructions the trial court called attention to this provision of the policy, but the jury was also instructed that in order to recover the plaintiff would not be required to comply with that provision if he were in fact totally and permanently disabled, and if no benefit would be received by such weekly attendance of a physician, and such attendance would therefore be futile. In answer to a special question, the jury found that the weekly attendance of a physician would have been futile. (Question 13.)
While there is some conflict of authority on-the question, we think, after careful research, that the great weight of authority supports the rule stated in the instructions by the trial court. In the first place, it is generally held that where a policy provides benefits for both temporary and permanent disability, and has a provision requiring regular attendance of a physician, the provision relates only to temporary disaibility. (7 Couch on Insurance 5797, § 1679; 1 C. J. 466, § 173; 29 Am. Jur. 885.) That is a reasonable interpretation and to hold otherwise would lead in many cases to results so mani festly unreasonable that courts would not in good conscience enforce the requirement. Suppose a policyholder is totally and permanently disabled through the loss of sight in both eyes — would any court re-, quire the weekly attendance of a physician in order to secure continuing benefits provided by the policy? Obviously not, and such situations are commented upon in many decisions. (115 A. L. R. pp. 1066-1067; Natl. Life Ins. Co. v. Patrick, 28 Ohio App. 267, 162 N. E. 680; Hunter v. Federal Casualty Co., 199 App. Div. 223, 191 N. Y. S. 474.)
Appellant calls attention to 1 C. J. 466, § 173, and to the case of Provident Life & Accident Ins. Co. v. Harris, 234 Ky. 358, 28 S. W. 2d 40, wherein occurs the same citation from Corpus Juris. But it will be noted that the rule cited in Corpus Juris specifically states that the provision for attendance of a physician — where benefits for both temporary and permanent disability are provided — “refers only to cases of temporary total disability.” In Liston v. New York Casualty Co., 28 Misc. Rep. 240, 58 N. Y. S. 1090, cited by appellant, the policy provided “no disability shall constitute a claim . . . where the claimant is able to leave his bed or house . . . nor when the attendance of a physician is not required every second day at the bedside.” The policy in that case apparently provided no benefits except while the insured was confined to his bed or house, which is very different from the instant provision.
Analogous to the Liston case, supra, is our own case of Sheets v. Life Insurance Co., 116 Kan. 356, 225 Pac. 929, cited and stressed by appellant. In that case the policy provided benefits in two classes of cases — one for total disability while the insured was “necessarily and continuously confined within the house” and the other while he was not so confined. The claimant was not permitted to recover during the period when he was not confined to the home, but was making visits to the physician. The two classes of cases were established to measure, however roughly, the degree of sickness. A wholly different situation is presented where the continuing attendance of a physician would in no way measure the degree of sickness, or incapacity of the insured. The same comment may be made concerning Richardson v. Interstate Business Men’s Accident Ass’n, 124 Kan. 685, 261 Pac. 565, cited by appellant and which specifically followed the Sheets case, supra. While the policy in that case did contain a provision relative to the attendance of a physician, in addition to the requirement of confinement in the house, the case was decided soley on the latter provision, the court saying: “In the case at bar nothing whatever is said in this part of‘the contract about disability, the only question being whether or not the insured was confined to the house. We think he was not. Of course, there are other features in this provision, such as being under the constant treatment of a regular physician and the confinement being the result of the disease, but these points are not here controverted. We adhere to and follow the decision in the Sheets case.” (p. 688.) Further analysis of cases cited would unduly prolong this opinion.
On the question of fact, appellant contends there was no evidence to support the jury’s finding that the regular weekly attendance of a physician would be futile. We cannot agree. While Doctor Pusitz testified that the claimant “could have the joint stiffened” and "would very likely get a foot he could at least walk on much better than he can at this time,” the injury to the foot was by no means the only serious injuries suffered by the appellee, and in answer to a direct question as to whether, in his opinion, the appellee “would have benefited during the past year had he been attended weekly by a physician and surgeon,” Doctor Pusitz replied: “I don’t think so.” Moreover, on cross-examination by appellant the appellee testified that he consulted Doctors Loveland, Mills and Clark and was told that there wasn’t anything they could do for him.
Appellant next contends that appellee cannot recover because he failed to make the “proof of loss” required by the terms of the policy, and that the jury’s answer to question 19, supra, that such proof had been waived by appellant is contrary to the evidence. The jury answered (question 17, supra) that the appellee did not file with the company any proof of loss or claims for total loss of time for the period beginning February 22, 1937. This answer stands as the finding on that question, although the trial court, in the course of extended comment when overruling various post-verdict motions, stated: “I consider that proofs of loss were furnished.” The court may have had reference to the notice of the accident, the claim and the proofs of loss which were furnished prior to February 22, 1937. Certainly the company, having made payments up to that time, is in no position to question the adequacy and regularity of the proofs theretofore furnished. We incline to the view that such prior proofs do not take the place of proof of total permanent disability subsequent to the settlement. It may be said, however, that the policy is not entirely clear as to when proof of loss based on permanent total disability should be furnished. Clause 7 provides that “affirmative proof of loss must be furnished ... in case of claim for loss of time from disability within ninety days after the termination of the period for which the association is liable” (italics ours). Obviously, if a disability can be shown to be actually “permanent” the “period for which the association is liable” terminates only with death. Presumably, the provision is intended to mean that proof should be furnished, within ninety days after each monthly period for which the insurer is liable. Be that as it may, the court instructed the jury that if they found that prior to the commencement of the present action the company, with knowledge of the claim, declined to pay it, and by clear and decisive acts led the plaintiff to believe its refusal was not based on failure to furnish proof of loss, then the company would be said to have waived the furnishing of such proof of loss. In its answer to question 19, supra, the jury found that there had been such a waiver. (See 7 Cooley's Briefs on Insurance, p. 6062, [c].)
On the question of waiver, appellant contends at the outset that it was not within the issues raised by the pleadings, and therefore cannot be reached as an issue of fact. The argument is that the answer specifically denied that any “proof of claim” showing permanent disability had been furnished; that the reply simply alleged generally that all conditions of the policy had been performed and that if any conditions had not been performed, their performance had been waived; and that this allegation of waiver was a mere conclusion of law, no facts constituting waiver being pleaded in the reply. Appellant, however, did not attack the reply by demurrer, by motion to strike, or motion to make definite and certain, and, as far as the record discloses, the contention that the issue of waiver was outside the pleadings was first specifically raised on this appeal. It is too late to raise it now.
After attempting without success to engage in various employments, the appellee, by his attorney, wrote to appellant in the latter part of 1938 advising it of his physical condition and claim of total disability. The “forms” upon which proof of loss may be made were not forwarded, but instead, an agent of the appellant called upon appellee. The jury found that in the conversation which then took place the agent stated that the company had discharged its obligation and that no further obligation existed as a result of the accident. The jury also found that appellant’s attorney, in a pre vious suit, had admitted this denial of liability. Appellant argues that since the alleged denial of liability was made during the pend-ency of a former action, subsequently dismissed, it is not available as a waiver in this action. The argument is not persuasive. The essential and substantial question is whether the appellant was in fact denying all liability on the policy on other grounds and thereby rendering the formal proof of loss by the insured a fruitless performance. (7 Couch on Insurance, 5545, § 1573.) Certainly an admission in court by appellant’s attorney that such denial of liability had been made is as binding on appellant as would be a statement to the same effect made anywhere else by a responsible agent of the company. There is ample evidence to support a finding that any further liability was denied.
Appellant does not show that at any time prior to the filing of the answer in this action it based its denial of liability upon failure to furnish proofs of loss, or that its rights have been prejudiced by failure to furnish them. On the contrary, the record indicates that from the start denial of liability was entirely on other grounds. The trial court stated it thought there was sufficient evidence to support the jury’s findings of waiver. We agree with that conclusion and find no error in the refusal to set aside the answer to question 19. (7 Cooley’s Briefs on Insurance, p. 6019 et seq.; Insurance Co. v. Weeks, 45 Kan. 751, 26 Pac. 410; Bank v. Colton, 102 Kan. 365, 170 Pac. 992; Jones v. Brotherhood of L. Firemen, 141 Kan. 403, 406, 41 P. 2d 774.)
The execution of the release by appellee on February 22, 1937, is admitted. The trial court instructed the jury that this release constituted a complete defense to plaintiff’s case unless they found, from a preponderance of the evidence, that the release was signed under a mutual mistake of facts as to the. then present physical condition of the plaintiff. In further instructions the court then instructed the jury as to what constitutes such mutual mistake of fact as to avoid the release. We need not here enter upon any extended analysis of the decisions or discussion as to what constitutes such mistake of fact.as will permit avoidance of a release of claim for personal injuries. Textbook statements of the general rule are difficult to harmonize, and there is marked conflict in the cited cases. There is general agreement, however, that the mistake must be as to a present, existing fact or condition and not a mere mistake in prophecy as to a future condition. (48 A. L. R., pp. 1467-1475; Crouch v. Missouri Pac. Rld. Co., 128 Kan. 26, 30, 31, 276 Pac. 81.) The trial court so instructed the jury, and no objection was made to the instruction. We think there was sufficient evidence to support a finding, which, under, the instructions as given, is implicit in the general verdict, that appellant and appellee were mutually mistaken, at the time the release was signed, as to the essential nature of the injuries, the inherently serious character and permanency of the appellee’s then physical condition resulting from the accident, and to justify the post-verdict comment of the trial court that “the injury that this man received was undoubtedly, to my mind, more than anyone ever realized. In this fall one of the vertebrae — lumbar vertebra — was, you might say, squashed; it was mashed down perpendicularly and spread out horizontally, markedly so in an X-ray picture. He received an injury to one of his knees and to one of his feet. . . . There isn’t any question in the world but that there was a mistake on the part of both parties as to this man’s condition at the time this release was signed.”
Other contentions of appellant are largely incidental to those already considered and do not require further attention.
We find no error. The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This action was for a declaratory judgment to con strue a will and to determine the rights of the legatees and devisees thereunder.
William C. Bardo, a resident of Cowley county, died testate on the 6th day of December, 1938. Omitting formal parts, the will reads:
“Item One: I give and bequeath to my sister, Maggie Holmes, my business property at 111 South Summit street, Arkansas City, Kansas, to have and to hold forever.
“Item Two: I give and bequeath to my brother Harry’s wife, Emma Bardo, and his and her sons John, Frank and William Hensyl, my one-half undivided interest in business property at 108 South Summit, Arkansas City, Kansas, to have and to hold forever.
“Item Three: I give and bequeath to my sister-in-law, Cora W. Bartlett, my thirty shares of General Motors Stock to have and to hold forever, if she is living.
“Item Four: I give and bequeath to my sister-in-law, Virginia B. Wright, my S500 Cities Service Bond to have and to hold forever, if she is living.
“Item Five: I give and bequeath to my wife Grace, my undivided one-half interest in residence property at 442 Riverview avenue, Wichita, Kansas, to have and to hold forever.
“Item Six: After items one, two, three, four and five have been fulfilled and my funeral and other indebtedness have been paid, I give and bequeath to my wife Grace, control of all my property and I give and bequeath to her the income from all my property, both real and personal, as long as she lives: Provided she keeps all the buildings insured against loss by fire, wind and hail, and pays all the taxes assessed against all the property and keeps all property in good repair.
“Item Seven: At the death of my wife' Grace, I give and bequeath to my niece Carol Bardo, my undivided one-half interest in real estate at 12S South Summit street, Arkansas City, Kansas, to have and to hold forever, if she is living.
“Item Eight: At the death of my wife Grace, after item seven is fulfilled and my wife Grace’s funeral and other indebtedness is paid I give and bequeath to my nieces and nephews and great-nieces and nephews, descendants of my sister Emma, sister Sarah and brother Wilson, also to Elmore Wright, Elizabeth Wright, Floyd Wright, Earle Wright, Nellis Mason, Mabel Mason Quail and Catherine Malissa Bardo, all that are then living, share and share alike in the net proceeds of all the remaining property.
“Item Nine: I hereby nominate and appoint my wife Grace, executrix of this will as long as she lives to act as such without bond. At her death I appoint Maude E. Bardo as executrix of this will to act as such until all the terms of this will are complied with, to act without bond, and she may take out of my estate for her services, $500. I hereby authorize, direct and empower them both to make, execute' and deliver any and all releases, ac-quittances, assignments, grants and other conveyances necessary and required to fully carry out all the terms and conditions of this will and to do so without orders or directions of the probate court or any other court.”
The will was duly admitted to probate, and Grace Bardo was appointed executrix. On January 12, 1939, the widow, Grace Bardo, renounced the provisions made for her in the will and elected to take under the law.
The plaintiffs in the action are certain beneficiaries claiming under item eight of the will.
Maggie Holmes, devisee under item one of the will, filed an answer and cross petition. Similar pleadings were filed by the legatees and devisees under items two, three and four. Separate answers were filed by Grace Bardo, executrix, and by the specifically named beneficiaries under item eight.
The court made findings of fact and returned conclusions of law. From the judgment rendered upon the findings, various appeals and cross-appeals are before us.
Where a widow renounces the benefits attempted to be conferred upon her under the will of her husband and elects to take under the statute (G. S. 1935, 22-245), she receives the share of his estate that she would have taken had he died intestate, which is one-half in value after the payment of his debts. (Ashelford v. Chapman, 81 Kan. 312, 105 Pac. 534.) The statute gives the surviving spouse a right to a nonbarrable intestate share — the election to take against the will makes the guaranty effective.
As the election of the widow has caused a partial frustration of the original scheme of the testator, what disposition is to be made of the other undivided one-half interest in the property? In Allen v. Hannum, 15 Kan. 625, where the widow elected to take under the law, it was stated: “The other half of the estate, we think, should be distributed in accordance with the will, or as near in accordance therewith as may be possible under the circumstances of the case.” (p. 626.)
The rule thus announced has been followed in our subsequent cases: (Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815; Allen v. Patee, 104 Kan. 440, 179 Pac. 333; Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235; Ward v. Ward, 153 Kan. 222, 109 P. 2d 68.)
The law gave the widow the right of election. She could take under the will or an intestate share under the law. The testator was presumed to know that his widow had the right to renounce the will. But the renunciation makes only such changes in the will as the law compels.
The devisees and legatees under items one, two, three and four assert that they are entitled to compensation from the residuary property for the loss and disappointment sustained by them as a result of the election of the widow to take against the will.
The cardinal rule in the construction of wills to which all other rules are subordinate, is that the intention of the testator must be ascertained, if possible, and must be given effect if it is not contrary to an established rule of positive law or in violation of public policy. The intention which controls in the construction of a will is that which is indicated, either expressly or by necessary implication, in the language of the will. The testator’s intention must be ascertained from the whole will, or as it is frequently said, from the four corners of it. If the words and phrases of the will are clear in themselves, the court may not depart from the obvious meaning of such words and phrases in construing the intention of the testator as expressed in the will, the supreme test being to determine the actual-intention of the testator. (Thornberry v. Fletcher, 91 Kan. 744, 139 Pac. 391; Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708; Johnson v. Muller, 149 Kan. 128, 86 P. 2d 569; Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177.) In Selzer v. Selzer, supra, the court stated:
“A rula for the interpretation of wills, to which all other rules must yield, is that, the intention of the testator must control. In order to ascertain that intention it is the duty of the courts to consider the1 will as a whole and to give to its various provisions such construction, if reasonably possible to do so, as will effectuate rather than defeat the intention of the testator.” (Syl. If 1.)
In items one and two specific devises of real estate were made to the persons named. In item three there was a gift of “my thirty shares of General Motors Stock.” This was a specific legacy. (Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021; 3 Pomeroy’s Equity Jurisprudence, § 1130; 69 C. J. 919.) Likewise, the gift in item four was a specific legacy. The legatees under three and four survived the testator and the condition that the legatees should be alive at the death of the testator was fulfilled. The property devised and bequeathed in items one to four was a part of the estate of the testator at his death.
Under item five certain real estate is devised to the widow.
Then follows item six with the significant words: “After items one, two, three, four and five have been fulfilled and my funeral and other indebtedness have been paid,” the income of his property, real and personal, was given to his widow.
Under item seven a remainder interest in certain real estate is given “to my niece Carol Bardo.”
“At the death of my wife Grace, after item seven is fulfilled,” and after “other indebtedness is paid,” then the beneficiaries under item eight are to take “share and share alike in the net proceeds of all the remaining property.”
The intention oí the testator is clear. The order and sequence of the gifts to the objects of his bounty is set forth in plain language. First the devises and legacies in items one to five are given priority — after the fulfillment of these gifts the widow was to have a life estate in the balance of his property, real and personal — then the gift to the niece in item seven, then the net proceeds of all the remaining property to pass to class mentioned in item eight.
The court found the total value of the real and personal property of the testator at the time of his death was about $62,250. The court found that the real an,d personal property mentioned in items one, two, three and four was of the value of $11,743.18. The assets of the estate, after the widow’s election, were ample to compensate the preferred beneficiaries under the first four items of the will.
In Allen v. Hannum, supra, the testator gave all his estate to his wife for life, and after payment of debts and legacies the remainder was devised to the minor children of his daughter. A legacy was given to a son of the testator. The widow elected to take against the will. The court held the remainder to the minor children “was subject to the payment of the legacy” to the son.
In Pittman v. Pittman, supra, the testator devised eighty acres of land to his son. The widow was not named in the will. After payment of the debts and expenses one-half of the remainder of the property was devised to the children of his second wife. The election of the widow to take the share allowed her under the law deprived the son of one-half of the land devised to him. He asked compensation from the portion devised to the other children. In sustaining this claim, the court stated:
“The general rule is that where a widow renounces provisions of a will and elects to take under the law, and where devisees or legatees are disappointed in realizing the provisions made for them by the will, the benefits renounced by the widow are equitably applied, as far as possible, in compensating the losses so sustained by her election. In this case, however, the widow renounced nothing. The election of the widow to take under the law does not render the will inoperative further than as between herself and others claiming portions of the estate. As between other persons, the will will be enforced as near in accordance with the intention of the testator as it can be so enforced. (Allen v. Hannum, 15 Kan. 625.) The reading of the will conclusively shows that the testator intended his son Prank to have the eighty acres of land free from any indebtedness. Although it was encumbered with a mortgage of $500, with the other land, he directed that such mortgage be paid out of his other property. Again, his bequest to his other children was qualified by these words: ‘And after deducting the said bequest to my son Prank Pittman.’ On the other hand, no unqualified bequest is made to the other children, but a bequest is made subject to the payment of the debts as well as to the bequest to Frank. The other children were residuary legatees in the sense that after paying the debts and funeral expenses they were to have one-half of the remaining personal property as well as one-half interest in the homestead. It is also a general principle that where, under circumstances like these, a bequest is lost by reason of the election of a widow to take under the law, the loss is made good, so far as possible, out of any residuary property. It does not, however, appear in this case whether there was any residuary personal property after paying the indebtedness and funeral expenses; but it is not contended that the court erred in not so compensating the loss.” (p. 647.)
In our recent case of Kelsey v. Warfield, 147 Kan. 445, 76 P. 2d 777, it was held, as stated in the syllabus:
“Where a testator devised certain land, and also gave' a legacy of $5,000 out of his personal property, to his niece, and then provided that after all bequests and devises had been paid and fully met, and all debts and charges paid, the remainder of his estate was devised to his sister and brothers, and further provided that no part of any bequest to them, or either of them, should be paid until the bequests and devises to other persons had been fully paid: held, that if the personal property was insufficient to pay the debts and the legacy of $5,000 the residual real estate must stand charged with the payment of the same.”
In the Warfield case, the testator had specified the order and sequence of the gifts to the various devisees and legatees, and the intention as expressed in the will was enforced. The court stated:
“In the case at bar, if the testator had stopped with paragraph 4 of the will the argument of defendants would have been persuasive. But in paragraph 5 he declares ‘after the bequests and devises hereinbefore made by me have been paid and fully met, and all debts and charges paid, the remainder of my estate’ is to go to his brothers and sister. But not content .with this clear statement, and to exclude any lingering possibility of a doubt as to his intention, the testator makes the further emphatic statement that no part of any bequest to his brothers and sister ‘shall be paid until the bequests and devises made to other persons in this will have been fully paid and carried into effect.’ This language, we think, leaves the defendants without any substantial ground upon which to rest the opposite contention.” (p. 448.)
In Mercantile Trust Co. v. Schloss, 165 Md. 18, 166 Atl. 599, the testator devised to one Mary Jane White certain real estate (“Sara- toga” property) worth $7,000, and bequeathed to her $6,000 in money. The rest of the property testator gave in trust to pay income to his wife for life and and upon her death to convert the principal into cash and pay over to certain designated persons, corporations and institutions, amounts aggregating $265,000, and the balance of the trust estate, after paying all legacies, to Sinai Hospital. Inventory showed the whole estate amounted to $135,238. The widow renounced and elected her legal share, which entitled her to one-half of the testator’s net estate, including one-half of the “Saratoga” property. Held: (1) renunciation of the widow so far as the re-maindermen’s interests are concerned is equivalent to her death and had the effect of accelerating the remainders and making them payable presently instead of at the time assigned in the will; (2) the renunciation of the widow having had the effect of taking one-half of the “Saratoga” property from Mary she should be reimbursed from the corpus of the trust fund before the remaindermen entitled to the corpus receive any part thereof; according to the court it was apparent from the will that Mary Jane was the first object of the testator’s bounty even to the exclusion of the widow.
Our attention is called to the case of In re Povey’s Estate, 271 Mich. 627, 261 N. W. 98, 99 A. L. R. 1183. But in the will in that case the testator did not direct the sequence and priority of the gifts. The editor of the annotation in that case (99 A. L. R., p. 1188) stated:
“It is, of course, competent for the testator to direct specifically what portion of the estate disposed of by him in his will shall bear any loss that may be occasioned by the widow’s rejection of the testamentary provision made for her, and where such direction has been made the courts will give effect to it.”
In the will before us the testator stated that the specific devises and bequests in the first four items were to be fulfilled before the life estate to the widow in item six or the residuary gift in item eight should become effective. No valid reason has been suggested why the court should not give effect to the intention of the testator so clearly stated.
Was the remainder in item eight accelerated?
By the renunciation of the widow, her attempted life estate failed in its inception. (Kimberlin v. Hicks, 150 Kan. 449, 453, 94 P. 2d 335; Ward v. Ward, 153 Kan. 222, 109 P. 2d 68.)
Ordinarily a vested remainder will be accelerated upon the termi nation of the prior interest. But in Miller v. Miller, 91 Kan. 1, 136 Pac. 953, it was held that where the remainder was subject to an unfulfilled condition precedent, the remainder would not be advanced into a possessory interest.
Item eight recites that the gift is to “all that are then living” of the class therein named. We think the purpose was to benefit persons living at the termination of the preceding interest and not those who should be living at the death of the widow. (Restatement of Property, § 233, Comment c.) The provision did not create a condition precedent that would preclude acceleration of the remainder.
In this connection another matter deserves attention. The residuary gift under item eight was “to my nieces and nephews and great-nieces and nephews,” and to seven named persons. At the death of the testator he left thirty-five nieces and nephews and great-nieces and nephews. Three nieces were living. As other children may be born to the three living nieces, who would be classed as great-nieces or nephews, are such after-born persons to be admitted to the class? In other words, does the class include only the thirty-five nieces and nephews and great-nieces and nephews plus the seven named individuals — forty-two in all — or would the class increase in membership to include other children born to the living nieces and nephews who might be born before the death of the life tenant? We find no expression in the will that would indicate a purpose to include such after-born children. The class was subject to increase only during the existence of the life interest of the widow. By the election of the widow, her life estate never came into existence, hence any children of the nieces who might be born after the death of the testator are excluded. (Allen v. Hannum, supra. Restatement of Property, § 231, Comment i.) The remainder was accelerated and the class entitled to participate is composed of the forty-two persons above stated.
The election of the widow depleted the gifts to the beneficiaries under the first four items. Another consequence was that the devise to the widow in item five and her life estate became ineffective. One question debated is whether the court should sequester the interests renounced by the widow (which would include the life estate in property described in item seven) and administer the same as a trust fund to compensate the disappointed legatees under the first four items of the will. This solution of the question not only would prevent acceleration of the remainder, but would throw the renounced interests into a trust fund to continue during the life of the widow. This is done where the renunciation of the widow causes a substantial distortion in the testamentary plan. (Sellick v. Sellick, 207 Mich. 194, 173 N. W. 609, 5 A. L. R. 1621.) See annotation, 99 A. L. R. 230.
On the other hand, the remaindermen under item eight not only insist that the widow’s election causes an acceleration of their interests — an economic advantage not contemplated by the testator— but that the defunct gift to the widow in item five falls into the residue, and that this windfall inures to their betterment.
If we are mindful of the intention of the testator — of the order and sequence of the gifts formulated with care, of the rank and dignity usually accorded to specific devises and bequests, and of the essential nature of a residuary gift — the whole of these contentions cannot be adopted.
We think the remainder interest in item eight should be accelerated ; that the depleted gifts under the first four items should be made whole by (1) applying the proceeds of the ineffective gift to the widow under item five, and (2) applying so much of the proceeds of the gift under item eight (and item seven below noted) as may be necessary to accomplish that end. It also follows that the gifts under items five and eight should be subject to a lien or charge to secure restoration of the depleted devises and legacies under the first four items.
Under item seven the testator gave a remainder interest in certain real estate to his niece, Carol Bardo. Under the terms of the gift, her right of enjoyment was postponed until the death of the life tenant. Her remainder is now advanced. A charge should be placed on the real estate devised to her for the proportionate part necessary to make whole the specific gifts under the first four items.
The remaining questions presented on the appeal must now be examined.
How is distribution to be made among the remaindermen under item eight? We have considered with attention the various theories presented, but believe the answer is found in the direction given by the testator: “I give and bequeath to my nieces and nephews and great-nieces and nephews, descendants of” two sisters and a brother — and to seven named persons. At the death of the testator there were thirty-five nieces and nephews and great-nieces and nephews, descendants of the two sisters and the brother who were then living. • All nieces and nephews and all great-nieces and nephews 'were included. The limitation was that such persons must be descendants of “sister Emma, sister Sarah and brother Wilson.” This would exclude descendants of any other sisters or brothers who might otherwise answer the description of nieces and nephews or great-nieces and nephews of the testator. As there were thirty-five nieces and nephews and great-nieces and nephews, and seven named persons — a total of forty-two — we think the remainder should be divided into forty-two shares, and one share should be allotted to each of the forty-two members.
Was power conferred on the executrix to sell the real estate devised under item eight of the will? Item eight provides that the “net proceeds” of all the remaining property be divided among the beneficiaries thereunder, share and share alike, and in item nine the executrix is authorized and directed to execute the necessary conveyances to carry out all the terms and conditions of the will. The power is given by the express terms of the will.
It is next asserted that as the widow, Grace Bardo, renounced the will, she cannot be heard to claim any right or power under it. Having elected to take under the law she could not claim as devisee or legatee under the will. But we do not think her election to take against the will precludes her from acting as executrix. The estate must be administered. The widow was nominated by the testator and appointed by the court. If she should fail to perform her duties as executrix or to faithfully execute the trust imposed, she may be removed.
Certain claimants under item eight moved to dismiss the cross petition of the appellants who claim under the first four items of the will on the ground the probate court alone had jurisdiction to determine the rights of the cross petitioners. The cross petitioners were legatees and devisees under the will, and the contention they were not entitled to a hearing to establish their rights is without merit. (These same claimants are here asserting their rights under the will and contending the court erred in allowing them only an undivided one forty-second interest in the residuary assets.)
The trial court, in its conclusions of law, found:
“8. The court concludes as a matter of law that the' testator is presumed to have known the law when he executed his will, and that his widow might lawfully exercise her legal right to take against the will and according to law.
“In view of this presumption and in view of the fact that the executrix has settled ‘in full’ with Cora W. Bartlett and Virginia B. Wright and has ac counted with the legatees in items 1, 2 and 7 and, they have accepted said accounting, and in view of the intention of the testator as gathered from the will, taken as a whole, this court concludes as a matter of law that:
“The defendants, Maggie Holmes, Emma Bardo, John Frank Bardo, William Hensyl Bardo, Cora W. Bartlett, Virginia B. Wright and Carol Bardo Baldwin, are not entitled to be compensated or reimbursed out of the' testator’s property disposed of in item 8 of said will for their loss and disappointment occasioned by the election of the widow, Grace Bardo, and that they are not entitled to any lien or charge for the payment of the same on any other property of the decedent.”
It seems the widow, after her election to take against the will and her appointment as executrix, collected the rents on the real estate devised under items one and two of the will, and after the payment of current charges she appropriated one-half of the net proceeds to herself as owner and the balance to the devisees; that the subject matter of specific bequests under items three and four were sold and a like division was made between the executrix and the legatees.
As there was no evidence that the partial distribution made to devisees and legatees was understood to be or was accepted by them as a full and final release of their rights and claims under the estate, we do not think they were estopped to assert their rights under the will.
The court allowed a fee to the attorney representing the appellants, and it is contended the appeal should be dismissed for that reason. We do not think the case of Fadley v. Fadley, 128 Kan. 287, 276 Pac. 826, relied upon, is applicable. The point is not well taken.
Complaint is made of the action of the court in taxing the costs to the residuary assets of the estate. Under the statute, G. S. 1935, 60-3706, this was a matter within the discretion of the trial court.
We do not think it necessary to extend this opinion with comment on other questions raised.
The judgment will be reversed and the cause remanded with direction to enter judgment in accordance with the views herein expressed. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment overruling a demurrer to a petition in an action to recover from defendant the amount of money plaintiff had paid to one Goodman in accordance with the terms of its insurance policy protecting Goodman’s automobile from damage.
Goodman’s car had been demolished in a collision with defendant’s car — through the alleged fault of defendant. Plaintiff paid the amount of insurance specified in the policy, $250, and received from Goodman an acknowledgment of full payment thereof and an assignment to plaintiff of all his claims and demands on account of his 'loss and damage. The assignment also declared that plaintiff would be subrogated to the rights of Goodman, and that—
“The said company is hereby authorized and empowered to sue, compromise, negotiate, or settle in the name of the undersigned, or otherwise, to the extent of money paid as aforesaid.
“Dated at Russell, Kansas, this 5th day of August, 1937.
Frances E. Goodman (LS).
(Filed July 5, 1940)”
Plaintiff’s amended petition pleaded the pertinent facts and also alleged that pursuant to the assignment defendant paid to plaintiff “upon said claim for damages” the sum of $50, leaving a balance of $200 due, for which amount, with interest, it prayed judgment.
Plaintiff’s original petition had been subjected to a motion to make it definite and certain in many particulars, which motion was sustained in part and overruled in part. Following the filing of plaintiff’s amended petition, defendant filed a demurrer thereto on the ground that no cause of action was stated therein in favor of plaintiff. Defendant also filed a motion to dismiss plaintiff’s action with prejudice because of plaintiff’s alleged noncompliance with the court’s order to make its petition definite in certain particulars.
The trial court overruled that demurrer and motion. Hence this appeal.
Before considering the errors urged against that ruling, we have to notice a motion of appellee to dismiss this appeal on the ground that on May 5, 1941, at the instance of plaintiff, the district court dismissed the action without prejudice, and in consequence the matters involved in this appeal have become moot.
This suggestion is untenable. While a plaintiff with the discretionary sanction of the trial court may dismiss his action, that, rule has certain obvious qualifications. Once a litigant has brought his adversary into court, and issues of law or of fact are raised or joined between them, the rights of the latter in the subject matter of the litigation are just as potent as those of the former. Being brought into court, he is entitled to have the controversy adjudicated to a finality, so that there may be an end of litigation. If that goal cannot be attained without an appellate review, and the pro cedural steps are properly taken to secure it, the further control of the litigation is in the appellate court, not in the trial court. Our civil code gives the right of appellate review from an order of the district court which “sustains or overrules a demurrer.” (G. S. 1935, 60-3302.) That right cannot be prejudically cut off by some strategical manuever in the lower court. Exceptions to this rule there may be, but the rule itself is an elementary one. In Phillips on Code Pleading, 2d ed., section 43, p. 36, it is said:
“The appeal deprives the lower court of further jurisdiction as to the matters appealed, and vacates the judgment, and also the rulings on demurrer entered by such court.”
See, also, our own recent cases of Kotwitz v. Gridley Motor Co., 148 Kan. 676, 84 P. 2d 903; and Hicks v. Parker, 148 Kan. 679, 84 P. 2d 905.
It follows that appellee’s motion to dismiss must be denied.
Touching the errors complained of by defendant, we will first notice his contention that he was entitled to have the action dismissed mth prejudice because, he argues, the trial court’s ruling which ordered the plaintiff to make its petition definite and certain, was not fully complied with.. We think this point untenable. The civil code specifies the particular matters on which a trial court’s rulings will furnish a basis for an appeal, and an order overruling a motion to dismiss, with or without prejudice, is not one oí them. (G. S. 1935, 60-3302.)
Coming now to the main point, which relates to the overruling of defendant’s demurrer to plaintiff’s petition, it must be noted that liability of defendant Bender to recoup plaintiff’s outlay on its insurance policy to Goodman, is predicated on Bender’s alleged tor-tious demolition of Goodman’s automobile. It is elementary that a right of action for damages for a tort — a mere civil wrong — is not assignable; consequently plaintiff’s payment of its insurance liability and the recitals of assignment and of subrogation contained in Goodman’s receipt for the payment of the insurance money, conferred no legal right of action on plaintiff to maintain this action in its own name. The civil code (G. S. 1935, 60-401) declares that an action cannot be maintained on an assignment of a thing in an action not arising out of contract. Sixty-eight years ago, in McCrum v. Corby, 11 Kan. 464, 470, this court said: “Under our statutes every chose in action is assignable except a tort.” In K. M. Rly. Co. v. Brehm, 54 Kan. 751, 39 Pac. 690, it was said:
“Under our statutes, a right of action against a party for negligently and wrongfully destroying property by fire is not assignable.”' (Syl.)
See, also, A. T. & S. F. Rld. Co. v. Chenoweth, 5 Kan. App. 810, 49 Pac. 155; Railroad Co. v. Insurance Co., 7 Kan. App. 447, 53 Pac. 607; 2 R. C. L. 610-611; 6 C. J. S. 1080-1084; Anno.—Assignment—Action ex delicto, 5 A. L. R. 130-133.
In a variety of ex delicto cases where a recovery was sought against a wrongdoer, it has- been held that the action should be brought in the name of the injured party although he might have been reimbursed in whole or in part by a third party having a lawful interest to protect. (Railroad Co. v. Blaker, 68 Kan. 244, 75 Pac. 71; Insurance Co. v. Cosgrove, 85 Kan. 296, 299, 116 Pac. 819; Smith v. United Warehouse Co., 123 Kan. 515, 255 Pac. 1115; Watson v. Travelers Mutual Cas. Co., 146 Kan. 623, 73 P. 2d 64.) The case of Allis Chalmers Mfg. Co. v. Security Elev. Co., 140 Kan. 580, 38 P. 2d 138, properly considered, is not at odds with the general trend of our own decisions. Another recent case, American Mut. Liability Ins. Co. v. State Highway Comm. 146 Kan. 239, 69 P. 2d 1091, is pertinent here only so far as it holds that the right of an. insurer to subrogation when it has paid its contract liability on an accident policy extends no further than the pertinent statute permits.
We note, but attach no significance to the pleaded fact, that defendant paid $50 to plaintiff pursuant to the assignment of Goodman’s claim against defendant.
We hold that defendant’s demurrer to the petition on the ground that plaintiff had no right to maintain the action in its own name should have been sustained, and the judgment of the district court is therefore reversed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action for rents and for forcible de-tainer. Judgment was for plaintiff, and defendants have appealed.
On February 28, 1940, plaintiff filed its petition in the county court of Morris county, alleging that in December, 1939, pursuant to G. S. 1935, 79-2701, 79-2702 and 79-2703, plaintiff took possession of three described lots in the city of Council Grove, carried on the tax rolls of the county in the name of E. L. Cunningham; that the taxes upon the property had been delinquent for more than four years, and that the defendant, Loy Cunningham, was a tenant of a portion of the property; that since January 1, 1940, he had occupied the property without any legal right to do so, and that the reasonable rental was $25 per month; that about January 26 plaintiff had notified him to vacate, but he had continued to occupy the premises; that his original entry and possession was peaceable and lawful, but since January 1,1940, has been unlawful and hostile, and that the same constitutes forcible detention. Plaintiff further alleged that in behalf of the county it was entitled to the immediate possession of that portion of the premises described occupied by the defendant. The prayer was for judgment for $25 and for an order ejecting defendant from the premises.
Loy Cunningham filed an answer which contained a general denial except as to things specifically admitted; admitted the legal status of plaintiff and that pursuant to G. S. 1935, 79-2701, 79-2702 and 79-2703, plaintiff had attempted to take possession of the property, but alleged these statutes were unconstitutional and void; further admitted the property had been carried on the tax rolls in the name of E. L. Cunningham as the rightful owner thereof and admitted he was in possession of the property, and alleged that his possession was under a written lease, duly recorded, for two years from November 1, 1938, to November 1, 1940; that the rent had been paid in advance and that he was not indebted for rent. Further answering, defendant specifically denied that plaintiff has “any right, title or interest in the said premises and property whereby they are authorized to take possession thereof and on which the plaintiff could legally base this cause of action.” The prayer was for judgment for costs.
E. L. Cunningham filed an intervening petition in which she alleged she was the owner of the property and that on November 1, 1938, she had leased a portion thereof to the defendant, Loy Cunningham, for two years, and that the rent had been paid for the full time in advance. She further alleged that plaintiff “has no lawful right, title or interest in said property adverse to the ownership of this interpleader; that the proceedings had by the plaintiff were not warranted or authorized by any laws of the state of Kansas, and are void.”
She further alleged that G. S. 1935, 79-2701, 79-2702 and 79-2703, are void for the reason procedure thereunder would deprive her of her property and rights without due compensation.
Upon the ground that the pleadings involved the question of title to real property the cause was certified to the district court, where it came on for trial upon the pleadings previously filed. Counsel for plaintiff stated the substance of plaintiff’s petition, the court inquired if there was any controversy as to the property having been bid in by the county, and counsel for defendants answered: “We claim that the lots were not legally bid in.” The same question was raised repeatedly by counsel for each of the defendants. The county clerk, called as a witness, testified the property had been bid in for taxes at some prior date, but later, and in 1932, those taxes were compromised and paid; that the property was advertised in September, 1939, for the taxes of 1938 and again bid in by the county. His testimony further showed that the three lots and the seven buildings thereon were valued together as a group; that the buildings and lots were not separately assessed. There appears to have been quite a little colloquy and evidence on the point as to how the property was assessed and valued.
After judgment was rendered for plaintiff, defendants filed a motion for a new trial, including the pertinent statutory grounds. This was supported by the affidavit of one of the attorneys for defendants to the effect that the pertinent record in the office of the county treasurer showed that the property had been advertised for sale in 1932 for the taxes of 1931 and prior years, but that all those taxes were compromised and paid September 7, 1932; that thereafter there had been no sale of the property for delinquent taxes until in 1939, when it was sold for the delinquent taxes of 1938 and prior years and bid in by the county. The court held this evidence having been available in the public records all the time was not newly discovered, and refused to consider it. The motion for a new trial was overruled.
Plaintiff’s right to maintain this action is predicated upon G. S. 1935, 79-2701, which reads:
“That in all cases where lands or town lots are sold for delinquent taxes lawfully assessed, and bid in at such tax sale for the county in which they are situated, and held by the county under such tax sale for a period of three years or more from the date of such sale, the board of county commissioners may take possession of and lease the same to the highest bidder therefor, for a period of one year, and to continue to so lease the same until the amount due the county for taxes thereon shall be fully paid.”
The two following sections pertain to the execution of such leases, the receipt for rent collected, and the application thereof upon the taxes.
Under this statute the facts that the property had been sold for taxes, bid in by the county and held by the county for more than three years, are conditions precedent to the right of the county to take possession of the property, lease it and apply the rentals upon the taxes. Allegations and proof of these conditions were entirely lacking. In fact, the only pertinent evidence is to the contrary. The only sale of the property for taxes which had not been redeemed from was in 1939. The property had not been held by the county “for a period of three years or more” after such sale when this action was brought. Indeed, it had been so held only a few months. The authority of plaintiff to proceed in this cause was squarely put in issue by the answers. Plaintiff relies upon the statute above quoted for its authority. We feel compelled to hold plaintiff’s petition and the proof are insufficient to justify judgment in its behalf.
Quite a little is said in the briefs of both parties about the legality of the assessment of the three lots, with the several buildings thereon, as one tract. We do not regard this as an important question in the case, especially in view of tlje conclusion we have heretofore stated.
Appellants argue that the statutes above mentioned violate the fourteenth amendment to the federal constitution in that they authorize the taking of appellants’ property without just compensation. The point is not well taken. Normally, methods provided by a state for the collection of taxes for the state and its political subdivisions are not affected by the fourteenth amendment to the federal constitution. We see no reason for holding the statutes here in question are so affected.
From what has been said it necessarily results that the judgment of the court below must be reversed with directions to enter judgment for defendants. It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
In this action the defendant was convicted of grand larceny. He appeals.
The defendant was charged along with two other men with the theft of a spool of new wire line and one spool of used wire line. The theory of the state was that defendant Harrison counseled, aided and abetted the other defendants in the theft.' The other two defendants pleaded guilty and were paroled. Defendant Harrison stood trial.
There was evidence to the effct that the other defendants talked to defendant Harrison about going from Wichita to Stevens county and stealing a particular spool of wire which was known to be at a particular place in Stevens county. Both of the other defendants testified for the state. The evidence was that defendant Harrison was to furnish the truck and the other two men were to drive it to Stevens county, steal the line and bring it back to a place of business maintained by the defendant, where he sold oil-field equipment. Both defendants testified to substantially that state of facts. The evidence disclosed that when the two defendants, who actually took the wire, arrived at Stevens county, they looked over the situation surrounding the location of the spool of wire they had talked about stealing and decided it would be too risky to take that particular spool of wire. The evidence disclosed that they then went to another part of the county and discovered another and different spool of wire in a field; that the next day they came back and stole it and brought it back to Wichita, did not deliver it to defendant, but did deliver to him an old spool of wire, which they had taken at the same time. The defendant asked that the jury be discharged at the conclusion of the state’s evidence. This motion was overruled. The defendant did not introduce any evidence and the case was submitted to the jury and the defendant was found guilty.
He argues first that his motion to discharge the jury should have been sustained. His theory is* that the evidence for the state proved that the new spool of wire, for the theft of which he agreed to furnish the truck, was not the spool of wire which actually was stolen, but another spool of line wire which was stolen, and that he did not know of the existence of the spool of line wire which was the subject of the larceny. He argues that on account of this he could not be convicted of counseling, aiding and abetting in the theft of that particular spool of wire.
It is not necessary for us to decide the interesting question that is thus raised by the defendant. There was sufficient evidence to warrant the court in submitting to the jury the question of whether defendant Harrison agreed with the other two defendants that they might take his truck and start out on a general expedition of stealing oil-field equipment, including lines, wherever it might be found. Both the codefendants testified to the effect that while there was some talk about the particular spool of wiré there was also talk with Harrison to the effect that any wire that might be found in the vicinity of Stevens county should be stolen and brought back to Wichita to defendant.
The court instructed the jury upon both the theories, that is, that if the defendants were to steal a particular spool of wire and no other the evidence must show that that particular line and no other was stolen by the two codefendants before Harrison could be con victed, but if the codefendants were to steal oil-field equipment, including lines, wherever it might be found and defendant Harrison was a party to such a plan and some line was stolen, then he would be guilty to the samg extent as those who actually took the property.
There was a great deal of testimony as to the details, and since the main witnesses were codefendants it was somewhat difficult to get the entire facts out of them. However, one witness testified as follows:
“Q. Now, the deal about his truck was made between Clyde and John, wasn’t it? A. No, sir; I was present then.
"Q. As I understand it, you were going from Wichita to Hugoton to get a load of cable, regardless of what kind it was? A. Yes, sir.
“Q. And Hugoton was the word used in the conversation about the' cable? A. Hugoton — like I told the county attorney, we went several places; Hugo-ton was one place, one point of destination; yes.
“Q. Let me ask you if you weren’t coming to the Kuhn yard at Hugoton to get cable? A. I wouldn’t say definitely, but I don’t believe the Kuhn yard was used, at the time.
“Q. And at the time you left Wichita, you didn’t have any idea there might be any cable down here where finally you saw it that night? A. Yes; I believe there were.”
This evidence, if believed by the jury, would have been sufficient to warrant the jury in concluding that the expedition for which Harrison furnished his truck was a general line-stealing expedition. Under such circumstances defendant would be guilty if he counseled, aided and abetted such a plan. There was also evidence as to the other expeditions of this sort, for which defendant Harrison furnished his truck. We hold it was not error for the court to deny the motion to discharge the defendant.
Another point argued by defendant is that the court erred in refusing a requested instruction. This instruction was to the effect that where the state relied upon circumstantial evidence for conviction, the circumstantial evidence relied upon to establish the guilt of defendant must be of such a character as to exclude every reasonable supposition or hypothesis other than the defendant’s guilt.
The court refused to give this instruction. This was not error because the state did not rely entirely upon circumstantial evidence. Circumstantial evidence was merely incidental to the direct evidence of the codefendant. (See State v. Gereke, 74 Kan. 196, 86 Pac. 160.)
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiffs, trustees of the estate of Carl Goellert under the will of his mother, brought this action to have the will construed with respect to their right to mortgage or sell certain real property and give full title thereto. Defendants claimed the fee of the real property subject to the life estate of Carl Goellert. The trial court construed the will in harmony with the views of plaintiffs. Defendants have appealed.
Franc Goellert and his wife, Imkea Goellert, settled in Thomas county in the homesteading days of the early ’80s. By their thrift and industry they accumulated and improved 1,760 acres of land, most of which is good farm land, and reared a family of six children, all of whom are living. One of the children, Carl Goellert, now about 48 years of age, when a small child had infantile paralysis which prevented him from attending school and left him a cripple. Franc Goellert died many years ago. Some years later his widow married Hans Handevidt, whose death preceded hers. On March 1, 1935, she executed her will, which was duly admitted to probate after her death in December, 1936. By her will she directed that all her just debts and funeral expenses be first paid, made gifts of certain of her personal property to named persons and directed that all her other personal property and certain real property in Los Angeles be converted into cash by her executor and the money so received be deposited in a named bank “as a trust fund for my son Carl Goellert, whom I recognize to be incompetent to manage and direct his business affairs. I hereby nominate and appoint Emma Morehead and S. H. Alexander, to be trustees of such fund and of the estate of the said Carl Goellert, and I hereby authorize and empower said trustees to use such estate for the living expenses and care of my son Carl Goellert. I further order and direct that such trustees shall have the management and control of the real estate hereinafter devised to my son Carl Goellert, and that all income including rents and profits realized from such real estate be placed in the trust fund hereinbefore created.”
Later in the will provision was made for the disposition of any part of the trust fund remaining upon the death of Carl Goellert. The paragraphs of the will principally to be construed, read:
“Fourth: I give, devise and bequeath to my son Carl Goellert, a life estate in and to the north half (N%) and the southeast quarter (SE14) of section eighteen (18) and the west half (WVz) of section seventeen (17) all in township seven (7), range thirty-five (35), Thomas county, Kansas, and that upon the death of the said Carl Goellert, the said real estate is to descend to my children, Otto H. Goellert, Herman Goellert, Ida Hand and Esther Sewell, in fee simple, share and share alike.
“Fifth: I further authorize and direct the trustees of Carl Goellert, here-inbefore created, the right to sell or encumber the real estate of my son Carl Goellert, but only upon the express provision that the personal property and money, in the trust fund created for my son Carl Goellert, be exhausted, and that such encumbrance or sale of real estate be essential for the proper keep and care of such son.”
S. H. Alexander was nominated executor of the will. He duly qualified as such, the estate was administered, and the administration closed in December, 1937. The money constituting the trust fund was turned over by him to the trustees. Thereafter the trustees mortgaged for $1,000 each two of the quarter sections of land described in the fourth paragraph of the will, the mortgages con taining full convenants as to title. On learning of this the appellants here objected and asked plaintiffs to have the mortgages released and rewritten so as to cover only the life estate of Carl Goellert in the land. This request was refused, and this action followed.
The testatrix had her will written by her attorney. As sor written it contained devises to her competent children of specific real property. Before the will was executed she concluded to make deeds to those children for the respective tracts of land devised to them and to omit those devises from her will. She went to her banker, S. H. Alexander, and told him she wanted to make deeds in lieu of those devises. He drew the deeds for her, which she executed, and also retyped the will, omitting those devises. As retyped the fourth and-fifth paragraphs were not changed from the form in which they had been written.
By the fourth paragraph of the will the testatrix devised to her son Carl only a life estate in and to the 800 acres of land described in that paragraph and devised the remainder, upon the death of Carl, to her four children named. By this paragraph the four children, upon the probate of the will, had a vested remainder interest in the property. In other words, they had the fee title to the land, subject only to the life estate of Carl.
Vested remainders, for the purpose of taxation, are defined by our statute (G. S. 1935, 79-1504) as follows:
“Vested estates in remainder, as used herein, shall include all estates where the remainderman, being alive, would take at once if the life tenant were to die.”
The same rule applies to the construction of wills. In Stevenson v. Stevenson, 102 Kan. 80, 169 Pac. 552, it was held:
“Where a life tenancy and remainders are carved out of an estate by will, and the remaindermen are in esse, definitely ascertained, and nothing but their death before the termination of the life tenancy can defeat their title, the remainders thus created and bestowed by the will are vested absolutely in the remaindermen.” (Syl. U 3.)
See, also, 21 C. J. 979; Shehi v. Williamson, 122 Kan. 118, 250 Pac. 1075; McLean v. Stanley, 134 Kan. 234, 5 P. 2d 839; Anderson v. Wise, 144 Kan. 612, 62 P. 2d 825, and authorities there cited.
Since, in construing a will, consideration must be given to all parts of it (see Markham v. Waterman, 105 Kan. 93, 95, 181 Pac. 621, and cases there cited), we look to see if the respective devises in the fourth paragraph are in any way modified by other provisions of the will. The only part of the will which it is contended has that effect is the fifth paragraph. Appellees argue that the fifth paragraph of the will, wherein the trustees of Carl, under circumstances named, are authorized and directed “to sell or encumber the real estate of my son, Carl Goellert,” enlarges the devise of the life estate made to Carl in the fourth paragraph of the will into a fee simple title. We think the language used is not open to that interpretation. A life estate in land is real property. (G. S. 1935, 77-201, ¶ 8; Strom v. Wood, 100 Kan. 556, 164 Pac. 1100.) The owner of a life estate may sell (G. S. 1935, 67-205) or encumber it, and if the life estate is in nonexempt real property it may be attached for his debts or levied upon by execution, and in the event of his bankruptcy would pass to his trustee. (See 21 C. J. 938, 940; Bank v. Murray, 86 Kan. 766, 121 Pac. 1117; Markham v. Waterman, 105 Kan. 93, 97, 181 Pac. 621; McCartney v. Robbins, 114 Kan. 141, 217 Pac. 311.) The very idea of a life estate presupposes a fee existing elsewhere than in the tenant for life. The owner of a life estate has no power to destroy the remainderman’s interest in the property. (Carlyle v. Pee, 125 Kan. 727, 265 Pac. 1113.) The only real estate which the testatrix devised to her son Carl was the life estate in the 800 acres described in the fourth paragraph, and when by the fifth paragraph she authorized her trustees, in certain contingencies, to “sell or encumber the real estate of my son Carl,” it seems clear that the reference could be to nothing .but the life estate devised to him by the fourth paragraph of the will.
Appellees argue that it is obvious from the will the testatrix desired her crippled son should have adequate care. It may be conceded that was her purpose, but she provided for it in a definite way, which no doubt she thought would be ample.
At the trial, over the objection of defendants, the witness S. H. Alexander was permitted to testify that on the occasion when the will was executed the testatrix said that she expected to leave enough for Carl to support him all his life, and she set up this 800 acres of land and said it didn’t matter to her if it took the entire 800 acres, plus the income, she wanted it to go to Carl. If such a statement was made Mr. Alexander should have seen to it that it was embodied in the will. The testimony was incompetent and should not have been received, and if received should not have been considered. This is not a suit to reform a will; in fact, courts have no authority to reform wills. (Hoover v. Roberts, 144 Kan. 58, 58 P. 2d 83, and cases there cited.) The rule is well settled that ex trinsic evidence may be received to show the situation of the testatrix, the status or location of her property, the relationship of beneficiaries named in the will, and things of that character (Phillipson v. Watson, 149 Kan. 395, 87 P. 2d 567), but such evidence is not proper to be received to change the meaning of the language used in the will. (Guthrie v. Guthrie, 130 Kan. 433, 286 Pac. 195.) The same rule applies to deeds. (Miller v. Miller, 91 Kan. 1, 136 Pac. 953.)
Plaintiffs act only in the capacity of trustees for Carl Goellert. He had only a life estate in the 800 acres described in the fourth paragraph of the will. Plaintiffs could sell or encumber only the estate of Carl Goellert, hence they had no authority to sell or mortgage more than his life estate in the land. Mortgages or deeds which they have executed, or may execute for this land, encumber or convey only the life estate of Carl Goellert.
Some matters are discussed in the briefs which are not appropriate in an action to construe the will. We find no necessity of discussing other matters argued. From what has been said the judgment of the court below must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Allen, J.:
This action was to foreclose a mortgage on real estate. Judgment was rendered for the plaintiff, foreclosing the mortgage and fixing the period of redemption at six months. On this appeal defendants contend they are entitled to eighteen months in which to redeem.
The case was tried upon the following agreed statement of facts: “It is hereby stipulated for the purpose of determining the period of redemption from sheriff’s sale made in the above-entitled action that the facts are as follows:
“Defendant, Samuel L. Gorham, paid one Thomas D. See one ($1.00) dollar for an option to purchase the real estate involved in this action for an agreed price during an agreed time.
“Thereafter defendant, Samuel L. Gorham, made an application to. the Federal Housing Administration for a loan in the sum of forty-six hundred (14,600) dollars for the purpose of erecting a house upon the real estate herein involved, said loan to be secured by a mortgage upon said real estate; said application was dated-; that on --said defendant was advised said loan would be approved by FHA; thereafter and on March 30, 1939, defendant exercised his option by paying the full purchase price of the lot out of his own funds and was given a warranty deed that same day. The real estate was not paid for from the proceeds of the loan, and at this time no money had been advanced on said loan. On April 4, 1939, plaintiff’s mortgage was executed and on April 9, 1939, it was placed of record.
“On April 28, 1939, the first money was advanced by the American National Bank of Hutchinson, Kan., in the sum of four hundred and sixty ($460) dol lars as is evidenced by the copy of the promissory note hereto attached marked 'exhibit A’, the remaining balance to be secured by the mortgage was advanced by the American National Bank of Hutchinson, Kan., as the house and improvements on the real estate were completed.
"Gorham paid approximately seven hundred ($700) dollars out of his funds for the building of the house.
“That the amount of principal due upon said loan and the mortgage securing the same at the time of the judgment in this action represented more than two-thirds of the cost of the lot plus said seven hundred ($700) dollars, plus the amount advanced upon said loan.
“The question involved in this case is whether or not plaintiff has a purchase-money mortgage within the meaning of 60-3466, G. S. 1935, so that defendant would have only six months from the date of the sale within which to redeem the same.”
Plaintiff contends that the purchase of the lots and the erection of the building are one transaction for the accomplishment of which the mortgage was given — that the mortgage is in effect a purchase-money mortgage and the defendants are therefore entitled to but six months in which to redeem.
Under the agreed statement of facts the defendant Gorham paid the full purchase price of the lot out of his own funds and secured a deed to the property. It was further agreed: “The real estate was not paid for from the proceeds of the loan, and at this time no money had been advanced on the loan.”
Clearly this was not a purchase-money mortgage under the statute G. S. 1935, 60-3466.
The judgment is reversed and the cause remanded with directions to enter judgment allowing defendants eighteen months in which to redeem. | [
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Per Curiam:
The application for a writ of habeas corpus herein is ordered filed without deposit for costs. Petitioner predicates his right to a writ of habeas corpus upon the ground the district court of Leavenworth county has denied such a writ, which constitutes no basis for an application to this court, but rather the contrary, where as here there is no appeal from the judgment of the district court nor any assignment of error founded thereon. Passing that point, petitioner contends that his conviction and sentence for grand larceny was erroneous and void in that his crime was the theft of an automobile in South Sioux City in the state of Nebraska and that the district court of Butler county, Kansas, under whose judgment and sentence he is now held in the penitentiary, had no jurisdiction.
This contention is untenable. Petitioner was duly informed against in Butler county, Kansas, on the charge that on December 13, 1936, he—
“Did then and there willfully, unlawfully and feloniously bring said stolen automobile above described into the county of Butler, state of Kansas, said automobile being the personal property of David H. Johnson.”
Such a charge was properly drawn under G. S. 1935, 21-103, and the punishment therefor was properly imposed as for grand larceny under G. S. 1935, 21-534.
The application is denied and this proceeding dismissed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to enforce the specific performance of a written contract to sell real estate. Judgment was for the plaintiff. Defendant appeals.
Judgment was entered for the plaintiff on the pleadings; hence, it will be necessary to examine them.
The real estate in question is a hotel building. The amended petition upon which the action was finally tried, after the formal allegations identifying the parties and describing the real estate, alleged that plaintiff owned an undivided two-thirds interest in the property in question, and that her sister owned an undivided one-third inter est; that about the 20th of August, 1930, plaintiff and her sister entered into a written contract for the sale of the property.
A copy of the contract was attached to the petition. In brief, it provided for a consideration of $40,000, and in paragraph 4 provided that the consideration was to be paid as follows: $2,050 in cash, with interest on the balance at the rate of six percent per annum, the balance to be paid in monthly installments of $350 per month, payable between the first and tenth days of each month, with a cash payment of $3,000 on August 20,1935, and that on the above payment interest should cease. Paragraph 17 of the contract provided that to make paragraph 4 more explicit, and to provide for a method of computing interest on the unpaid balance of the purchase price, it was specifically agreed that the full consideration of $40,000 should be paid as follows: $2,050 in cash on the execution and delivery of this contract; 139 monthly installments of $350 each to be paid between the first and the tenth of each and every month, the first installment to be paid on September 1, 1930, and the 140th installment to be $235, the 140 installments aggregating $48,885, and the payment of $3,000 on August 20, 1935, making the total amount payable under the contract, including all interest, the sum of $53,935.
The petition then alleged that G. S. Holvey agreed to organize a corporation to take over the contract; that upon the completion of the payments provided for, the real estate would be conveyed to the hotel company or Holvey by warranty deed; that Holvey did form a corporation known as the Independence Hotels Company; that this corporation entered into the possession of the property and assumed the obligations of the contract; that the consideration of this contract was the payments that have heretofore been set out; that on the 28th day of January, 1931, the corporation assumed the obligation to make the payments specified, and has paid plaintiff her two-thirds proportion of each of the installments thereafter becoming due except the installment due and payable between the first and tenth days of November, 1938, which installment was due at the time the action was filed, and paid the 1931 and 1932 taxes and assessments on the property, and on February 1,1936, defendant paid to plaintiff the sum of $1,100 in cash as her two-thirds proportion of said $3,000 cash payment, and delivered to plaintiff its note dated February 1, 1936, in the sum of $900 for the balance of her share of this payment.
The petition further alleged that plaintiff’s share of the 140 install ment payments provided for the aggregate sum of $32,746.66, and that defendant has made ninety-eight of these payments to this plaintiff, commencing with September, 1930, and including October, 1938, at the rate of $233.33 on each installment, aggregating $22,-866.34; that forty-two payments remain to be made, of which the share of plaintiff aggregates the sum of $9,880.32, and that defendant was in default in the payment for November in the sum of $233.33; that the contract provided that defendant would promptly pay all taxes and assessments, and keep the property insured in a sum not less than $22,000.
The petition then alleged that defendant had wholly omitted to pay the taxes for the years 1933 to 1937, and that there was owing against the property the sum of $7,147.06, together with interest thereon to November 28, 1938, in the sum of $457.21, making the aggregate of taxes and interest unpaid the sum of $7,504.27; that these taxes had been due within each of the years, and defendant had been in default in payment of them; that the property had been sold each year for taxes; that defendant had neglected to advise plaintiff as to whether or not the property had been kept insured.
The petition then alleged that the Independence Hotels Company was insolvent, and was without funds with which to pay the installment of November, 1938, and the succeeding installments, or to pay the taxes due and unpaid, and that plaintiff was in danger of losing her claim on account of these taxes.
The petition then alleged that plaintiff demanded and was entitled to a strict performance of the contract, and to have each monthly installment provided for paid promptly according to the terms of the contract, and that upon default by defendant of any of the payments she was entitled to have the property sold and the proceeds impounded to satisfy these payments.
The petition alleged that plaintiff had performed every part of the obligation imposed on her by the contract, and was entitled to have specific performance of the contract decreed and offered to execute and deliver and tender a good deed in fee simple as the court might direct to thereby fully carry out the contract.
For a second cause of action the plaintiff referred to the note for $900 that had been referred to in the first cause of action, by the terms of which defendant promised to pay plaintiff seventy-four months after the first day of February, 1936, $900, with interest at the rate of six percent per annum; that about February 1, 1937, the defendant paid $54 interest, but had neglected to pay any other interest on the note, although $54 became due on the first day of February, 1938.
The allegation as to the insolvency of defendant, the hotels company, was repeated in this cause of action, and the petition alleged that plaintiff was entitled to have this amount made a coordinate lien with the amount set forth in her first cause of 'action.
The third cause of action was for $54 interest which became due February 1,1939.
For the fourth cause of action the petition alleged that defendant was, and had been for some time past, insolvent and wholly unable to pay its debts; that about the first of April, 1937, it leased the property in question to one Hunter for $450 per month for the first year, expiring in 1938, and for the monthly rental of $500 per month thereafter, and sold to Hunter all its furniture and fixtures in the hotel for a large sum, which plaintiff was unable to state; that defendant had collected a large portion of this, and had converted the proceeds to its own use, and had not applied it on the taxes and assessments on the property; that on April 25,1938, plaintiff demanded of Holvey, president of the defendant corporation, that defendant pay the taxes and assessments then due, owing and unpaid; that Holvey informed plaintiff that it did not have the money or funds, and could not borrow the money with which to pay these taxes and assessments.
The petition further alleged that about November 21, 1938, plaintiff demanded of Holvey that defendant pay the taxes and assessments due and unpaid on the property, and that defendant again informed plaintiff that defendant was without funds, money or credits. Plaintiff further demanded on the 21st of November, 1938, that it pay the November, 1938, assessment due her and the interest on the note set out in the second cause of action, and Holvey again informed plaintiff that defendant was unable to pay. The plaintiff alleged that by reason of this failure to pay the taxes levied upon the property, they became a lien prior to any and all claims of the plaintiff thereto; that the county had purchased the property for the taxes and assessments due thereon for the years 1934,1935,1936,1937 and 1938, and that her claim and title to the property had been endangered, and was liable to be lost.
The petition further alleged that plaintiff did not know what defendant had done with the furniture and fixtures of the hotel, or what it had done with the income from the property, but alleged that defendant had omitted to apply them upon the indebtedness stated, and had permitted the property to be sold for taxes.
Plaintiff alleged that on or about the 21st day of November, 1938, the defendant had on deposit to its credit approximately the sum of .|4,000, and on that date withdrew $3,700 of it, and moved it into Missouri for the purpose of preventing plaintiff from claiming it, and for the further purpose of preventing the trial court from being able to seize it on application of the plaintiff.
The plaintiff prayed judgment for the specific performance of the contract, and that she have judgment on the several causes of action, and that the court order the defendant to return this $3,700 to the jurisdiction of the court, and that the court order this to be applied upon the payment of the taxes, and that the property and assets of defendant corporation be sold, and the proceeds thereof be impounded for the purpose of making the payment of the monthly installments due the plaintiff under the contract, and for the payment of the costs of this action, including the expenses of the receivership, and that plaintiff should have such other relief as might be just and equitable, including the costs of the action. Prior to the filing of this pleading the plaintiff had filed an application for the appointment of a receiver, and one had been appointed after a hearing.
The answer of defendant was first a general denial. The answer then admitted the identification of the parties, and the execution of the contract; that Holvey was, at the time the action was filed, in possession of the property, and was the president of the defendant company. The answer further alleged that the only title of the plaintiff to the real property was a two-thirds interest, and that the remaining one-third interest owned by plaintiff’s sister was purchased by defendant about January 31, 1936; that throughout the existence of the contract until the filing of this action Holvey and defendant have paid plaintiff her proportionate two-thirds share of the total monthly payments the same as though Holvey or this defendant had from the inception of this contract owned the one-third interest; that plaintiff had accepted this two-thirds payment of $350; that plaintiff’s right against this property was and should by the court be restricted to this two-thirds payment, and any decree in favor of the plaintiff should be with reference only to the two-thirds interest owned by plaintiff.
The answer further alleged that since the execution of the contract the defendant had made large expenditures upon the property, substantially improving it, and enhancing its value, and that within six months after the execution of the contract on August 20, 1930, Ho.lvey expended the sum of at least $10,000 in repairing and remodeling the hotel; that within the six months’ period following the execution of the contract defendant had refurnished the hotel building at a cost of $18,000; that in addition to these expenditures defendant had paid to plaintiff prior to filing of this action the sum of $19,700.01 upon her two-thirds share of the total price of $40,000; that in addition thereto plaintiff had received from defendant or Holvey prior to the filing of this suit $6,533.66 of interest.
The answer further alleged that, in addition to these expenditures and payments, defendant had fully discharged the contract insofar as it related to the one-third interest of Hattie F. Conger, and alleged that on account of the large expenditures it had made it would be inequitable to forfeit the rights of defendant by a strict construction of the terms of the contract; that justice and equity under the facts and circumstances alleged required that this contract be construed and treated as — and defendant averred that it is — legally an equitable mortgage upon plaintiff’s two-thirds interest in the said property; that if all, or any part of it, or interest in the property should be decreed sold, that such interest should be subject to a period of at least eighteen months’ redemption in favor of defendant, and that plaintiff should be decreed to have only the rights of an equitable mortgagee in and to the said two-thirds interest in the property.
Answering the second and third causes of action, the answer admitted the execution of the note, and alleged that the actions were prematurely brought, and ought to be dismissed at the cost of plaintiff because all of the principal of it, with the interest thereon, under the terms and provisions of the note, was due at the maturity thereof, seventy-one months after February 1, 1936. .
For a cross petition the defendant alleged the contract provided that the payments should be made as follows:
“1. Initial cash payment. $2,050.00
2. Payment to be made August 20. 1935 . 3,000.00
3. 139 monthly payments of $250 each. 34,750.00
4. 140th payment. 200.00
Total $40,000.00:
The cross petition alleged that the true and accurate understanding and agreement was that the total sale price of the property was $40,000, payable as above alleged, and that the interest should be paid at the rate of $100 a month for 139 months, making a total of $13,900, and that the 140th payment should be the sum of $35, making the total of $13,935; that under the true agreement of the parties the $350 monthly payments constituted the monthly principal payment of $250, and the monthly interest payment of $100, and that the last or 100th installment of $235 covered the $200 final payment upon the agreed purchase price of the property, and $35 balance of the total agreed interest; that the drafting of the contract extended over two days, and that paragraph 4 of the contract reciting that the balance of $40,000 should be paid at the rate of six percent per annum was completed upon August 20,1930, subsequent to the drafting of this paragraph, and prior to the final execution and signing of the contract the parties fully agreed upon the total interest payable under this contract in the sum of $13,935; that the parties had engaged a lawyer to reduce their contract to writing, and that he had partially completed this contract, including paragraph 4 thereof, prior to the parties agreeing upon the total interest of $13,935, and that after agreeing upon this interest they orally informed the lawyer of their agreement, and thereupon the last or seventeenth paragraph of this contract was drafted and completed on August 21, 1930; that by mutual inadvertence, mistake and oversight the parties to the contract failed to inform him that the total agreed interest of $13,935 was not computed according to the six percent interest rate recited in paragraph 4, and all the parties overlooked the provision, in paragraph 4 of the contract relative to the balance of the purchase price drawing interest at the rate of six percent per annum; that as a result of this mutual mistake and inadvertent error and oversight of the parties, and their failure to fully inform their attorney of their contract agreement, paragraph 4 of the contract was inaccurate, and did not state the true agreement of the parties; that paragraph 4 should be reformed by striking therefrom the following words:
“With interest thereon at the rate of six percent (6%) per annum.”
The cross petition alleged further that as a result of this error and mutual mistake the contract in its present form was ambiguous, and did not conform to or recite correctly the true agreement of the parties in that to compute the interest at the rate of six percent per annum upon the unpaid balance of the purchase price of the property over a period of 140 months of this contract would result in a greater sum of interest than $13,935, the total interest agreed upon between the parties; that the allocation of interest at six percent over the term of this contract would extend the term thereof between four and five months beyond the total period of 140 months, the agreed term of the contract; that this contract as written should be reformed by striking therefrom the provisions with reference to six percent interest, thereby making it accurately recite the true agreement of the parties, which agreement defendant averred rendered the rate of interest immaterial. Defendant prayed that it be discharged without liability herein, and that it be adjudged to own absolutely in fee simple one-third of the property, together with all improvements thereon, free and clear of any claim of plaintiff; that plaintiff be adjudged to have only the rights of an equitable mortgagee in and to a two-thirds interest in this property with the improvements and appurtenances, and be restricted to such interest; that if any of this property be adjudged sold, that only plaintiff's two-thirds portion thereof be decreed sold, and that defendant be granted a period of at least eighteen months’ redemption in the event of the sale of the property; that the true agreement of the parties be determined, and the contract sued on by plaintiff be reformed to recite the true agreement of the parties, and that any judgment that may be rendered herein be according to the true understanding of the parties as the same might be ascertained; that defendant have such other and further relief as the court deems equitable and just.
The plaintiff filed a reply by way of a general denial to the answer, and to the same effect answered the cross petition. It should be noted here that before the pleadings of defendant that have been heretofore referred to were filed, defendant filed a general demurrer to the petition. Plaintiff had also filed a motion and application for the appointment of a receiver. The trial court had appointed a receiver, and overruled the demurrer of the defendant. (See Lewis v. Independence Hotels Co., 150 Kan. 840, 96 P. 2d 605.) The defendant appealed from the order appointing a receiver, and from the judgment overruling its demurrer to the plaintiff’s amended petition. The order appointing a receiver was made January 25,1939, and the notice of appeal was made May 4, 1939. On this account more than two months had elapsed since appointing the receiver, and this court decided that the notice of appeal from the order appointing a receiver was filed too late.
This court, however, did consider the question as to whether the court erred in overruling the defendant’s demurrer to the petition because it did not state a cause of action. This court held amongst other things that the petition did state a cause of action for the specific performance of the contract and for such incidental or varied relief as a court of equity might properly decree. The case was then sent back to the trial court where the pleadings were filed that have been heretofore noted.
When the case came on for trial plaintiff moved for judgment upon the pleadings. This motion was sustained. At the same time defendant moved to dismiss the action and this motion was overruled, hence this appeal.
The first question argued by defendant is that its motion to dismiss the action should have been sustained. The defendant bases this argument upon the provision of the contract which provided that in case the second party should default in the payment of any sums due, the first party should have a right to declare the contract terminated and to immediate possession of the property with all improvements that had been made thereon by defendant.
Defendant argues that this clause in the contract took away from plaintiff the right to file an action such as this for its specific performance and a money judgment which is as asked in this case. We do not find it necessary to examine the authorities relied on by defendant to sustain its contention as to this argument for the reason that the grounds advanced by the defendant could have been very well advanced on the demurrer which was ruled upon by this court in the former action. There can be no doubt but what the demurrer urged was a general demurrer, since the grounds upon which it was urged were that the petition did not state facts sufficient to constitute a cause of action and that plaintiff could not maintain the action.
In Headley v. Challiss, 15 Kan. 602, this court held:
“Where a case is brought a second time on error to this court, the first decision. will be deemed the settled law of the case, and will not be made a subject of reexamination.
“This rule extends, not merely to all questions actually presented by counsel, but to all questions existing in the record, and necessarily involved in the decision.” (Syl. ¶¶ 2, 3.)
In C. B. U. P. Rld. Co. v. Shoup, 28 Kan. 394, this court held:
“Where a case is brought a second time on error to this court, the first decision will be deemed the settled law of the case, and will not be made the subject of reexamination. (Headley v. Challiss, 15 Kan. 602.)” (Syl. ¶ 1.)
In Crockett v. Gray, 31 Kan. 346, 2 Pac. 809, this court held:
“Where a case is decided by this court, on proceedings in error from the district court, that decision becomes the law of the case, for all subsequent proceedings; and this rule covers not merely the points expressly considered and decided, but all questions necessarily involved in the decision.” (Syl. ¶ 3.)
See, also, Henry v. Railway Co., 83 Kan. 104, 109 Pac. 1005, also, Fitzpatrick v. Bean, 128 Kan. 473, 279 Pac. 7.
The rule stated in the above cases applies to this case and prevents defendant from rearguing on the second appeal to this court a point which could have been urged on its former appeal. It is not possible, by changing the name of. the pleading by which a' matter is brought to this court from a general demurrer to a motion to dismiss, to cause this court to reexamine the question.
Moreover, the pleadings disclose beyond any doubt that the defendant, by its voluntary act of selling the furniture and fixtures in this hotel, made it impossible for the plaintiff to take advantage of the provisions of paragraph 9 of the contract.
Defendant next argues that the court erred in entering judgment on the pleadings. To sustain this argument defendant claims there are issues of fact made by the pleadings that require a determination before a court could enter judgment. The specific issue of fact pointed out by the defendant is, first, that the answer alleged that plaintiff received from defendant the sum of $233.33, and that defendant had become absolute owner of one-third of the property, and that on this account should said property described in the petition be decreed sold, the sale should be restricted to the two-thirds interest and that plaintiff’s rights be restricted to such interest or the proceeds from the sale thereof. .
It is difficult to see where these allegations stated any issue of fact. The plaintiff and defendant are in agreement as to how much of this property plaintiff owned and as to the manner in which the payments were to be made. The only question is as to the legal effect to be given such facts.
The defendant next points out with reference to this argument the allegations of its cross petition wherein the fact that the interest paid appears at six percent in paragraph 4 of the contract and as a lesser amount in paragraph 17. An examination of the pleadings with reference to this point and the contract discloses that while the cross petition stated in one place that the parties agreed upon the rate of interest and informed the scrivener that they had, the next paragraph stated that by mutual agreement the parties failed to inform the scrivener of the fact. The fact is, that taking the allegations in the most favorable light as to the oral agreement and the written agreement, the oral agreement was alleged to have been made before the written agreement and all agreements were executed and merged into the written contract. Furthermore, the contract discloses that paragraph 17 upon which defendant relies stated it was added to the contract for the purpose of making paragraph 4 more explicit.
The rule is stated in Colt Co. v. Kocher, 123 Kan. 286, 255 Pac. 48, as follows:
“Rule followed that in the absence of pleading and proof of some species of fraud or mutual mistake in the procuring of a party’s signature to a plain and unambiguous written contract, it must be enforced according to its terms, and neither pleading nor proof of a parol understanding at variance with such terms can be considered.” (Syl.)
See, also, Parker v. Mouse, 148 Kan. 643, 84 P. 2d 941.
There is no allegation of mutual mistake or fraud sufficient to create a question of fact as to the item of interest in this contract.
The next point argued in this connection by defendant is that, as to the second and third causes of action, its answer pleaded that the interest on this note was not due until the note was due, which was many months after the time the action was filed. This does not state a question of fact. It only states a question of law as to whether or not the fact that a payment of one year’s interest when it was due by the defendant started a course of dealing so that by the conduct of the parties the note should be construed to mean that the interest was payable each year.
The petition should contain—
“A statement of the facts constituting the cause of action . . .
“A demand of the relief to which the party supposes himself entitled . . .” (G. S. 1935, 60-704.)
The answer should contain:
“A general or specific denial of each material allegation of the petition controverted by the defendant.
“A statement of any new matter constituting a defense ... or a right to relief concerning the subject of the action, in ordinary and concise language, and without repetition.
“When relief is sought, the nature of the relief to which the defendant supposes himself entitled . . (G. S. 1935, 60-710.)
Arguments and conclusions of law have no place in the pleadings.
Succinctly stated, the petition in this case pleaded the execution, delivery of the contract, the entry of defendant into possession, the default of the defendant and the demand for relief.
The answer was a general denial and an admission of the execution and delivery of the contract and the entry of the defendant into possession and its lease to Hunter; an argument about the ownership of the property and a claim that the plaintiff had a limited lien only; a statement of the expenditure of large sums of money in improving the hotel property; a statement of the amount which defendant claimed it had paid the plaintiff which corresponded with the amount claimed by the plaintiff to have been paid; an argument as to the inequity and injustice of the contract and that the plaintiff should be limited to an equitable mortgage; an argument that the note showed on its face that the interest was not due.
In its cross petition defendant alleged an understanding as to what it claimed the understanding of the parties was with reference to the interest charge; that the parties understood their contract, but failed to inform the attorney who drew it of what they contemplated, and a statement with reference to the payments that had been made under the contract, which does not dispute the claim made by plaintiff. The conclusions of law stated in the pleadings are no part of the pleading and may be treated as surplusage. They do not state a cause of action nor do they state a defense.
See Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 251 Pac. 1097, and McIntyre v. Surety Co., 97 Kan. 629, 156 Pac. 690.
It is true that the answer in this case pleaded a general denial. However, such a statement in a pleading does not create an issue of fact when the later statements in the pleadings are such as to agree with the facts of the petition. (See Dickinson County Hospital Co. v. Kessinger, 128 Kan. 576, 279 Pac. 7, also McBroom v. Wilgus, 108 Kan. 14, 193 Pac. 1068.)
■ Defendant next argues that the court erred in entering the judgment which it did enter because the decree and judgment were inequitable and contrary to law. This makes it necessary to make a brief examination of the decree. It found the contract as was alleged. The initial cash payment of $2,050 and the making of 98 payments; that defendant defaulted as to the November, 1938, payment and that from that date until the day of the decree installments in the amount of $5,925.73 were due, which sum drew interest at the rate of six percent until paid; that time was of the essence of the contract and plaintiff was entitled to the specific performance; that defendant should be ordered to pay to plaintiff the above-stated overdue installments of $5,925.73 and to pay all.taxes and penalties incurred and all future taxes and assessments in default at the time of the decree in the amount of $7,500; that defendant had breached the contract by not making these payments and ordered that if a payment of these overdue installments and the future installments and the taxes be not made before December 15, 1940 — the date of the decree being October 14, 1940 — that the receiver proceed to sell the property at a receiver’s sale to the highest bidder; that the receiver should report the sale within ten days for approval or rejection by the court and authorized the plaintiff to bid at the sale and to take credit on her bid for overdue installments on the condition that her bid should equal or exceed the amount plus taxes and assessments. The proceeds of the sale were directed to the payment of taxes and assessments, the cost of the action; $5,923.73 to the plaintiff with interest and future installments to become due under the contract. The district court found the execution and delivery of the lease between the defendant and Hunter and of the payment of two-thirds of the cash payment of $3,000 of August 20, 1935, by the payment of $1,100 in cash and a $900 note dated February 1, 1936, on which note on February 1, 1937, defendant paid $54 interest, being interest for one year from February 1, 1936, and thereby construed the date for the payment of interest as being annually and the refusal of defendant thereafter to pay the interest and that plaintiff was entitled to judgment for the interest yearly; that the defendant was adjudged insolvent on the 25th day of January, 1939, and a receiver had been appointed. It directed the receiver to be in possession of the property until the sale of it, and retain jurisdiction of the case, and the taxes and costs and overdue installments were made liens upon the proceeds of the sale. There was no period of redemption provided for in this decree. The first argument with reference tp the inequity of this decree made by the defendant is that it was entitled to an eighteen months’ period of redemption. Defendant argues that since the court held this contract to be a contract which created an absolute obligation to pay, and gave a judgment for the amount required to be paid, the defendant was entitled to a period of redemption. In this connection the defendant points out it has paid plaintiff over $25,000 as equity in this property, and made improvements at a great deal of expense. At the outset, it should be noted that this court held on the former appeal that the petition stated a cause of action for the specific performance of a contract, with such other incidental relief as a court of equity might properly decree. (See Lewis v. Independence Hotels Co., supra.) This is clearly an action for equitable relief which equitable principles should control.
This court has held under certain circumstances that contracts for the sale of real estate were equitable mortgages and has required that they be foreclosed just as mortgages are foreclosed and the defendant purchaser given a right of redemption. This rule has been laid down, however, as the name implies, from the application to principles of equity, and each case was decided upon the facts of that particular case. (See Heard v. Gephart, 118 Kan. 82, 233 Pac. 1044, also Coryell v. Hardy, 144 Kan. 194, 58 P. 2d 1151.) Here the contract which the plaintiff seeks to enforce is an unambiguous contract for the sale of real estate. There can be no doubt as to what the defendant promised to pay and that time is of the essence. The defendant has permitted the property to be sold for taxes for several years so that now there is a lien for taxes in the amount of about $12,000. Soon after it went into possession of the property it sold the furniture and fixtures of the hotel for a substantial sum. It entered into a contract with one Hunter to lease the hotel for a period of ten years at a substantial sum per month. This action of selling the furniture and fixtures to Hunter and leasing the hotel to him made it possible for him to cancel his lease and remove the furniture and fixtures, which would have left the plaintiff in possession, with an empty hotel building on her hands, with no furniture in it and no tenant. These circumstances do not impress this court as constituting any equitable consideration in favor of the defendant here. Defendant argues vigorously with reference to the fact that it has already bought the one-third' interest owned by the sister of plaintiff. This fact casts some doubt upon the equitable conduct of defendant rather than being any help to it, in view of the fact that it does not state what consideration it paid the sister of plaintiff for this one-third interest, and in view of the claim that is made by defendant that its ownership of this one-third interest should pre vent the plaintiff from forfeiting the contract and taking possession of the hotel. It should be noted in this connection that defendant argues that the plaintiff was bound to proceed under paragraph 9 of the contract and to forfeit it and take possession. It is noteworthy, too, that defendant made no tender of the amount necessary to pay the back taxes that are a' lien upon the property or to pay the accumulated installment payments which are now in arrears. There is no indication in the pleadings of defendant that it would be able to take advantage of a period of redemption should it be granted one. Furthermore, the decree of the court allowed defendant sixty days in which to pay up the back installments and the accumulated •taxes before the property should be sold. There is no indication in the record that this was an unreasonable time or that the defendant evinced any intention to take advantage of it.
Under all these facts and circumstances, we hold that this was not an equitable mortgage and the court was correct in denying the defendant the eighteen months’ period of redemption.
What has been said with reference to the argument that this was an equitable mortgage and the defendant was entitled to the eighteen months’ period of redemption is an answer to' the argument of defendant that the decree was inequitable and unreasonable in other respects.
The next argument made by defendant is that the trial court erred in appointing a receiver. The receiver was appointed sometime before the consideration of the former appeal. Defendant attempted to appeal from that order, but was too late — hence, this court did not consider it. The defendant had a right, however, on appeal from the final judgment, to have the propriety of the order appointing the receiver reviewed. We shall consider that question now.
The fourth cause of action contained the allegations for the appointment of a receiver. Briefly stated, they were that the defendant was insolvent; that it had collected rents and converted them to its own use and had not applied them to the payment of taxes; that the president of the corporation made the same statement on November 21,1938, with reference to the taxes and installments and the interest on the note; that due to the nonpayment of taxes for the years 1934 and succeeding years, plaintiff’s title to the property was endangered; that plaintiff did not know what defendant did with the $6,000 or $7,000 received from the sale of the furniture, but alleged that it was not applied to the payment of taxes; that on November 21, 1938, the defendant withdrew about $3,800 from its account in the Independence bank and transferred it to Missouri to prevent the trial court from obtaining jurisdiction over it and compelling its application to the payment of the taxes.
To this application the defendant filed an answer which was in effect a general denial. There was an extended hearing on this application. Without going into the evidence introduced at this hearing in detail it may be stated that there was ample evidence that the defendant had refused to pay its taxes since 1934 and that they amounted at the time of the hearing to about $7,500; that it took $6,000 from the sale of the furniture and did not apply it on the taxes; that it withdrew $3,800 from the bank and took it to Missouri and refused to turn it over to the receiver; that its president told plaintiff it could not carry out the contract because it had no funds and suggested that the corporation might take bankruptcy because of its financial condition. There was evidence as to the general manner in which the business of the corporation was conducted so that the trial court was justified in scrutinizing the acts of the corporation and the testimony of its officers very carefully.
G. S. 1935, 60-1201, states the grounds upon which a receiver may be appointed. The section provides, in part, as follows:
“First. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.
“Fifth. In the cases provided in this code and by special statutes when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.
“Sixth. In all other cases where receivers have heretofore been appointed by the usages of the courts of equity.”
The plaintiff in this case is interested in the property, and if the tenant should have moved out or the county had eventually sold the property for taxes she would have been in danger of losing it.
We think there was ample evidence here that the defendant was insolvent or in imminent danger of insolvency. The statements of the president of the company were sufficient to warrant the trial court in reaching such a conclusion.
Equity has always permitted the appointment of a receiver whenever the property is threatened with loss. (See 23 R. C. L. 18.)
In State Bank v. Elevator and Mercantile Co., 116 Kan. 550, 227 Pac. 257, this court held:
“A court has jurisdiction to appoint a receiver in an action on promissory notes where a verified application for such appointment alleges defendant to be insolvent and that there is imminent danger of plaintiff’s claim being lost.”
In the course of the opinion this court said:
“Under the circumstances, the appointment of a receiver to preserve the assets of the .defendant for the benefit of all the creditors was proper. The allegations of plaintiff’s application that the defendant was insolvent were sufficient to give the court jurisdiction to make the appointment.” (p. 551.)
In Huston v. Cox, 103 Kan. 73, 172 Pac. 992, in affirming an order appointing a receiver, this court said:
“While the parties are merely cotenants of an incorporeal hereditament, the evidence was that they have reached an impasse. They cannot agree with respect to their rights, or the management of the property, or a disposition of it. There is no reason why a court of equity should not solve the situation; and meanwhile a receiver to hold the lease, protect the property, and perform other functions, is a proper and justifiable auxiliary.” (p. 76.)
See, also, Nelson v. United Elevators Co., 115 Kan. 567, 223 Pac. 814, also Childress v. Fox Mining Co., 130 Kan. 402, 286 Pac. 262.
The appointment of a receiver rests ordinarily in the sound discretion of the trial court. See 53 C. J. 34, also Watkins v. National Bank, 51 Kan. 254, 32 Pac. 914; Fluker v. City Rly. Co., 48 Kan. 577, 30 Pac. 18. In this action the trial court heard all the evidence and exercised its discretion by appointing a receiver. We have concluded that this action was warranted by the record.
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The opinion of the court was delivered by
HáRvey, J.;
This was an action to set aside a deed and to have a decree that the grantee holds the property in trust for the payment of plaintiff’s judgment against the grantor. The trial court sustained a demurrer to plaintiff’s petition, and he has appealed.
The allegations of the petition may be summarized as follows; On February 20, 1918, Frank Goyette was the owner of 760 acres of land in Allen county. On that date he and his wife, for a recited consideration of one dollar and love and affection, conveyed one quarter section of the land to their son, Fred Goyette, by a general warranty deed which contained this paragraph:
“He [the grantee] is to pay one-third (%) of all crop raised on said farm for as long as his father and mother live, and until all debt is paid, then he to have the use of the farm for as long as he lives, then his wife to have the use of the farm for as long as she remains his widow, then to the heirs of his body, if none is living at that time it will come back to the Frank Goyette estate.”
This deed was recorded August 7, 1920, in the office of the register of deeds of Allen county. The grantors executed similar deeds for specific parts of the land to others of their children so that by all of the deeds all of the land had been so conveyed.
On December 4, 1924, D. R. Goyette, one of the sons of Frank Goyette, borrowed $10,000 from the Iola State Bank, giving a note therefor signed by himself and his wife. On November 25, 1927, there was unpaid on this note and its renewals, the sym of $9,000, and the maker desired to increase his loan to $12,000. The bank declined to do that unless there was some security. On that date Frank Goyette executed in writing to the bank his guarantee of the payment of the note of $12,000 with interest. This recited that the bank held as collateral security for the note 95 shares of the capital stock of the Peoples State Bank of Moran, which the bank agreed to hold, and if the guarantor should be required to pay the note he was to be subrogated to the rights of the bank to the stock. On the same date Frank Goyette executed a written property statement to the bank which listed among his assets 760 acres of Allen county land. Questions in the statement as to in whose name the title to the real estate was held, and whether it was fee simple or leasehold, were not answered.
On September 1, 1929, the unpaid principal on the note to the bank was $11,000, and on that date D. R. Goyette and wife executed a new note to the bank for that sum, and at that time Frank Goyette executed his guarantee and property statement similar to those previously executed.
On September 2, 1930, there was a balance due on the debt to the bank of $10,250, and a new note for that sum was given to the bank signed by D. R. Goyette and wife, and by Frank Goyette. Thereafter and prior to April 21, 1932, the Iola State Bank sold, endorsed and delivered the note to the plaintiff herein, C. E. Sawyer. He sued the makers of the note, and on July 23, 1932, obtained a personal judgment against each of them for the amount then due.
Frank Goyette died intestate March 17, 1933. His wife's death had preceded his. He left as his sole heirs at law, his four sons, Fred Goyette, J. C. Goyette, R. D. Goyette and L. E. Goyette, his daughter, Lucy Ohlfest, and a grandson, Frank Goyette, Jr. His estate was not administered upon. On July 11, 1933, plaintiff’s judgment was revived against the heirs at law of Frank Goyette and an execution was issued thereon which has been returned wholly unsatisfied.
It was alleged that the deed of February 20, 1918, from Frank Goyette and' wife to their son, Fred Goyette, was made with the intent and purpose of placing the real estate beyond the claims of creditors, including subsequent creditors; was without a good and sufficient consideration and for the intent and purpose of hindering, delaying and defrauding creditors, including subsequent creditors of Frank Goyette; that until his death Frank Goyette retained dominion, control, and was in the actual, open and notorious possession of the land, and defendants made no claim of ownership thereto, and that by his guarantee and property statement Frank Goyette obtained the credit represented by the judgment. The prayer of the petition was that the deed to Fred Goyette be set aside and held for naught, and that the court adjudge and decree that the real estate described therein was held by Frank Goyette in trust for the payment of plaintiff’s judgment.
This action was brought May 2, 1934. All of the heirs at law of Frank Goyette were made parties defendant. The second amended petition was filed January 27, 1939, and then for the first time it alleged when the judgment was revived in 1933, that execution was issued thereon and returned unsatisfied. Also, for the first time, it was alleged that the deed of February 20, 1918, was executed not only for the purpose of defrauding existing creditors, but for the purpose of defrauding subsequent creditors.
We turn now to the legal questions. The allegations in the petition respecting the property statements and the written guarantees executed by Frank Goyette to the bank appear important only as a part of the history of the financial transaction. No action ever was brought on either of these written guarantees. More than that, the obligation of Frank Goyette, by reason of having executed those, became enlarged and his liability became more definite on September 2,1930, when he signed the note with D. R. Goyette and wife to the bank for the sum then due. It is not improper to say that his liability on the guarantees previously existing became merged in his liability on this note. At any rate they are no longer of any importance. The fact that Frank Goyette in his property statements to the bank listed among his assets 760 acres of land in Allen county was an incomplete as distinct from a false statement. He had an interest in the land properly classified as real estate. (G. S. 1935, 77-201, ¶ 8; Hogan v. Manners, 23 Kan. 551.) We need not speculate on why the questions asked in the statement, as to in whose name the title stood, and whether his title was a fee simple or otherwise, were not answered. The deed of February 20, 1918, had been of record seven years and three months before the first of these statements was executed. Perhaps the officers of the bank knew of the deed. Certainly they had constructive notice. In this petition it was not alleged the statement was false, or that it was made to deceive the bank. In short, the suit is not based upon fraud in executing those property statements.
The allegation that the deed of January 20,1918, was executed by Frank Goyette with the intent and purpose of defrauding his creditors, including future creditors, is a statement of a conclusion, without a fact alleged to support it, upon which an issue could be joined and a trial had. There is no allegation that Frank Goyette had any creditors when the deed was executed, or when it was recorded. One cannot be said to attempt to defraud a group which does not exist. Ordinarily a voluntary conveyance is voidable only as to existing creditors. In Voorhis v. Michaelis, 45 Kan. 255, 25 Pac. 592, it was held:
“A voluntary conveyance made to defraud creditors is void only as to prior and existing creditors, and to those designed to be defrauded by the conveyance.” (Syl. H 2.)
There are circumstances under which a conveyance may be fraudulent as to subsequent creditors (McPherson v. Kingsbaker, 22 Kan. 646), but—
“It must be made to appear either by positive evidence or by facts which justify the inference that the conveyance was executed with an actual, fraudulent intent on the part of the grantor to defraud creditors, where there was none at the time the conveyance was made.” (27 C. J. 521.)
And see Sheppard v. Thomas, 24 Kan. 780; National Bank v. Jaffray, 41 Kan. 694, 21 Pac. 242; Union Nat’l Bank v. Kramer, 121 Kan. 180, 246 Pac. 976. Where the grantor has no existing debts, and there is no fraud in the conveyance made, the land conveyed is not liable for the future debts of the grantor. (Sanderson v. Streeter, 14 Kan. 458.)
When a subsequent creditor of a grantor of a deed to real property seeks to set aside the deed as being fraudulent as to him he has the burden of alleging and proving facts reasonably tending to show the grantor intended to defraud him. (Bank v. Chatten, 69 Kan. 435, 77 Pac. 96.) No such facts are pleaded here. The deed was executed February 20, 1918, and recorded August 7, 1920. The note upon which plaintiffs obtained the judgment now sought to be collected was executed September 2, 1930. There is no allegation of any fact tending to show that ten or twelve years before this note was executed Frank Goyette intended to defraud anyone. The petition does not state facts sufficient to constitute a cause of action to set aside the deed on the ground of fraud. In reaching this conclusion we have not considered the statute of limitations which alone, apparently, would justify the same conclusion.
Appellant argues that in any event he is entitled to the income from the land until his debt is paid. He stresses the provision in the deed that the grantee is to pay one-third of all crops raised as long as the grantors live, “and until all debt is paid,” and argues that this means all debts of the grantors at the time of their death. We think the provision is not open to that interpretation. We think it referred to no more than all debt due at the time of the death of the survivor of the grantors, which, by accepting the deed, the grantee agreed to pay, which was one-third of all crops raised on the farm. To give it the broad interpretation contended for by appellant might very well, and would in this instance, render of no value that which was conveyed to the grantee by the deed. Appellant cites cases pertaining to the powers of courts of equity and argues his contention made on this point would be equitable. Our view is to the contrary. By the provision in this deed the grantee was to pay to the grantors practically what was rent for the land during their lifetime. In addition to that he was under obligation to pay the taxes on the property, not to commit waste, and to make such improvements, or betterments to existing improvements, as he desired. In our judgment it would be inequitable to him to give the language used the broad interpretation contended for by appellant.
We find no error in the judgment. It is therefore affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was a quiet-title suit. Plaintiff prevailed, and one of the defendants appeals.
The instant action was filed in Graham county March 28, 1938. Appellant’s principal contention is that a. real-estate foreclosure judgment rendered in 1928 in Saline county, upon which appellee’s title is based, was void for want of jurisdiction. In the Saline county action land in both Saline and Graham counties was involved. The instant action concerns only the land in Graham county.
Appellant in the instant action, Elizabeth Amanda Ashton, and her husband were the only parties defendant in the Saline county action. They were residents of Saline county, were served with process there and appeared by motion to have the petition made definite and certain. Thereafter their attorney withdrew the motion and personally withdrew from the action. There is nothing in the record to indicate, and appellant does not contend, she did not know he withdrew from the action. Defendants did not answer but permitted the judgment of foreclosure on the Graham county land, now complained of, to be rendered.
The foreclosure action was not instituted by the plaintiff in the instant case, but by one C. F. Eckelman. The Ashtons had purchased from Eckelman lots in the city of Salina on a written contract. The Ashtons made default in the installment payments due under the terms thereof. In connection with an attempted adjustment of their contractual relations, pertaining to the purchase of lots in Saline county, the Ashtons agreed to execute a note in the sum of $1,000, which note was evidence of only a part, approximately one-half, of the total contractual consideration for the purchase of the lots in Saline county. As a part of the same transaction as the $1,000 note, the Ashtons agreed -to execute and deliver to Eckelman a real-estate mortgage on the Graham county land in order to further secure the payment of the $1,000, represented by the $1,000 note. The Ashtons executed and delivered to Eckelman the $1,000 note and mortgage. A short time later they requested to see the note and mortgage. Eckelman responded to their request. The Ashtons destroyed the instruments. The action in Saline county was promptly instituted. Judgment was rendered enforcing Eckel-man’s lien on the lots in the city of Salina. Those lots were ordered sold first and the period of redemption was fixed at six months. The mortgage on the land in Graham county was ordered foreclosed and sold to pay any balance remaining due and unpaid after applying the proceeds from the sale of the lots in Saline county. The Graham county land was sold to Eckelman at sheriff’s sale. The sale was promptly confirmed and a certificate of sale was issued and delivered to Eckelman. The period of redemption on the Graham county land was fixed at eighteen months. Eckelman assigned his certificate of purchase to the Eberhardt Lumber Company, plaintiff and appellee in the instant action. The Graham county land was not redeemed and appellee, in the instant action, in due time ob tained a regular sheriff’s deed from the sheriff of Graham county. Appellee went into possession and has paid the taxes continuously since and including the year 1929. Eckelman had paid the taxes for the years 1927 and 1928 at the time of purchase at sheriff’s sale.
Appellant urges various alleged trial errors in the Saline county foreclosure action. It appears there may have been, and probably were, some trial errors in the Saline county action. No appeal, however, was taken by the defendants from the judgment of foreclosure or from any order or ruling touching the proceedings which-culminated in the sheriff’s deed. Manifestly the time for appeal from the judgment, orders or rulings, if in fact erroneous, has long since passed and appellant could not now urge such trial errors even though he had now perfected a direct appeal.
We shall not dwell upon the various alleged trial errors in that action. In passing, however, it may be well to again direct attention to a few well-established principles. It is, of course, elementary that a court cannot be vested with jurisdiction it does not possess. If, however, jurisdiction exists, then manifestly it cannot be restricted to power to decide a case rightly. Jurisdiction includes also power to decide a case wrongly. (Manley v. Park, 62 Kan. 553, 562, 64 Pac. 28; Thompson v. Terminal Shares, 89 F. 2d 652; 21 C. J. S., Courts, § 27.) Since jurisdiction embraces power to render a wrong judgment, it obviously includes power to err on every issue or question involved in the action. Admissibility of evidence is one illustration in the instant case. The issue of whether the debt was due and payable is another. The claim a debt is due may not contain a shadow of merit. Judgment on the claim, unappealed from, will, however, in time become unassailable. (Whiteman v. Cornwell, 100 Kan. 234, 237, 164 Pac. 280.) Numerous other illustrations of trial errors which can be corrected only by appeal, will readily suggest themselves to the reader. They need not be detailed.
The real estate involved in the Saline county action consisted of separate tracts of land situated in two counties, Saline and Graham. Both tracts were mortgaged to secure payment of at least $1,000 of j;he. total indebtedness. The district court of Saline county had jurisdiction of the subject matter. (G. S. 1935, 60-502, and cases cited.) Valid service was had on both defendants in Saline county. It is unnecessary to discuss, the interesting contention of appellee that failure on the part of plaintiff to sue on the Graham county mortgage in the Saline county action would have prevented a later suit thereon for the reason that a later suit would have violated the rule against splitting causes of action. The cause of action was not split and that question, although interesting, is of course not before us now.
Careful consideration of the record compels the conclusion the jurisdictional issue resolves itself into the narrow question of the sufficienc3r of the petition in the Saline county action.
Appellant urges the petition did not contain sufficient facts to constitute a cause of action for the foreclosure of the mortgage on the Graham county land, no issues were joined on such cause of action and the prayer discloses such relief was not sought. Appellant insists the action was in personam and designed to compel restoration of the destroyed note and mortgage and to compel specific performance. Of course, no issues were joined for the reason no answer was filed. The prayer is no part of the cause of action and can be of assistance only for the purpose of tending to indicate the relief to which the pleader may think he is entitled. It does not determine the relief to which he is entitled or which ultimately will be decreed. (Eagan v. Murray, 102 Kan. 193, 170 Pac. 389.) In order to determine the relief which might be granted we must look to all the pleaded facts. An examination of the instant petition and prayer indicates that restoration of the destroyed instruments and specific performance of the contract probably was uppermost in plaintiff’s mind when the petition was filed. We encounter difficulty, however, in saying that such was the only relief plaintiff had in mind. The petition clearly tends to indicate a confusion of theories on the subject- of relief. The motion to make the petition definite and certain was withdrawn. No demurrer thereto was interposed. The action was permitted to go to judgment without either the sufficiency of the petition or the sufficiency of the evidence being challenged. The petition, among other things, specifically alleged: The existence of the total indebtedness; the execution and delivery of the $1,000 note and mortgage on the Graham county land; that the mortgage was given as collateral security for the payment of the contracts (copy of the note and mortgage were attached to and made a part of the petition); that plaintiff was the legal owner and holder of the note and mortgage; that the debt was past due and payable and that plaintiff had a lien on the Graham county land by virtue of the mortgage. The court found from the evidence these facts were true, as alleged, and decreed the foreclosure of the mortgage. Other statutory steps culminating in the sheriff’s deed followed in normal succession.
Can appellant, under these circumstances, collaterally attack the sufficiency of the petition to state a cause of action for the relief granted? This court has long been committed to the doctrine that a petition which states no cause of action will sustain a judgment, good against a collateral attack, “if it contains sufficient matter to challenge the attention of the court as to its merits.” (Investment Co. v. Wyandotte County, 86 Kan. 708, 709, 121 Pac. 1097, and cases therein cited.) See, also, Head v. Daniels, 38 Kan. 1, 15 Pac. 911; Wyandotte County v. Investment Co., 80 Kan. 492, 103 Pac. 996; McPherson v. Martinson, 115 Kan. 828, 829, 224 Pac. 907.
In the case of Harnden v. Hadfield, 113 Kan. 525, 215 Pac. 441, which was an action for the rescission of a contract, this court said:
“Appellant complains of the judgment in that, instead of requiring a rescission, that is, a return of the plaintiff’s property to him, and reimbursement to the appellant for improvements, the judgment required appellant to take back the 351,500 mortgage, but also to keep the residence property in Garden City and gave plaintiff a judgment against appellant for SI,500 and made the same a lien upon the Garden City residence property. The rule is well settled in suits in equity for specific performance, cancellation of instruments, or re-seissioh, a court of equity having acquired jurisdiction of the parties and the property, on finding that it would be inequitable to grant the specific relief prayed for, retains jurisdiction to enter such judgment and decree as is equitable under all the circumstances of the case, even though that requires the rendering of .a personal judgment and making it a lien upon specific property.” (p. 528.)
In Asling v. McAllister-Fitzgerald Lumber Co., 120 Kan. 455, 244 Pac. 16, 46 A. L. R. 1127, it was stated:
“The trial court, sitting as a court of equity, may deal with the situation in accordance with its own good judgment and discretion as to what justice demands.” (p. 461.)
In Wyandotte County v. Investment Co., supra, the issues were joined by appropriate pleadings and the defendant failed to appear for trial. At a third term of court after the judgment had been entered defendant moved to vacate and set aside the judgment on the grounds the court was without jurisdiction to render it, that the petition stated no cause of action and that the judgment was utterly null and void. The motion was denied and the ruling was affirmed on appeal. This court said:
“The defendant, having been summoned into court, was compelled to take cognizance of all subsequent proceedings, and if it was aggrieved by the action of the court its remedy was by appeal; and it could not lie dormant until all remedy in the way of appeal had become unavailable and then go into court and ask that the judgment be set aside as void. (See Brenholts v. Miller, ante, p. 185; Manley v. Park, 62 Kan. 553; Rowe v. Palmer, 29 Kan. 337; Walkenhorst v. Lewis, 24 Kan. 420; Head v. Daniels, 38 Kan. 1.)” (p.495.)
See, also, Royse v. Grage, 138 Kan. 779, 781, 28 P. 2d 732.
The defendant, Sidney DePriest, has not appealed from the judgment and it is probably unnecessary to touch upon his alleged interest. We shall, however, do so briefly. The mortgage on the Graham county land was promptly recorded in the office of the register of deeds of that county. The petition in the Saline county action alleged the filing of notice lis pendens in the office of the register of deeds of Graham county immediately following the filing of the petition in Saline county. A deed to the Graham county land was thereafter delivered by appellant to the defendant, Sidney, DePriest. Appellant now concedes that deed was in fact only a mortgage. In the Saline county judgment it was decreed such notice was binding upon defendants and all of their assigns subsequent to the recording of the notice. DePriest has at no time attacked that portion of the judgment and no one has appealed therefrom. That portion of the judgment, as well as other portions thereof, was not a nullity, and it is too late to disturb it ten years later.
Studious examination of cases cited by appellant convinces us they are not inconsistent with the views herein expressed. The result is we are obliged to affirm the instant judgment quieting title to the Graham county land in appellee. It is so ordered. | [
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The opinion of the court was delivered by
Allen, J.:
The plaintiff, an attorney, brought this action to recover fees for professional services. Plaintiff recovered judgment. Defendant appeals.
On June 29,1939, two actions were filed against the defendant. In the district court the present action carried the number 103,897. It will be referred to as the “first case.”
In the petition in the first case plaintiff alleged that on or about June 12,1935, he was employed by defendant to represent defendant in certain litigation concerning an oil and gas lease. The petition sets forth the nature of the litigation, the services performed by plaintiff, the value of the property involved, and that plaintiff continued to represent defendant under the contract of employment until July 1, 1937, and that defendant had failed and refused to pay plaintiff for the services rendered. Plaintiff prayer for judgment for $10,165.80, with interest at 6 percent per annum from July 1, 1937, and for costs.
Defendant in its answer, filed December 26, 1939, denied that plaintiff was employed by defendant to represent defendant in the litigation mentioned, but stated that it did employ one Ralph Gore, an attorney, to represent defendant in such matters; admitted that plaintiff assisted Gore in the litigation; denied the value of the property involved as alleged in the petition; alleged it was ready and willing to pay Gore for his services, “and at this time offers to pay plaintiff and Ralph Gore” a fair and reasonable fee for their services. The reply of plaintiff filed April 2, 1940, denied the employment of Gore by defendant and alleged that Gore was an employee of plaintiff and assisted plaintiff in the conduct of the litigation.
At the trial the jury returned a verdict in favor of the plaintiff for $4,489.78, with interest at six percent from May 17, 1940, and costs, upon which judgment was entered.
On April 2, 1940, the defendant filed a motion asking the court to make an order consolidating the action with another action filed on the same day which we shall designate as the “second case.” In the amended petition in the second case plaintiff alleged that on July 1, 1937, plaintiff and Ralph Gore formed a partnership; that from the 12th day of June, 1935, until the 1st day of July, 1937, plaintiff represented the defendant as an individual, and that after the latter date the plaintiff and Gore, as copartners, represented the defendant in the litigation, and performed the services for which judgment was demanded.
The • overruling of the motion to consolidate is assigned as error. The defendant contends that the defendant should not be subjected to two lawsuits by an attorney who has rendered services under a single contract of employment in a single case.
Our statute G. S. 1935, 60-765, provides:
“Whenever two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no cause be shown the said several actions shall be consolidated. The orde/ for consolidation may be made by the court or by a judge thereof in vacation.”
But where consolidation is permissible under this statute it cannot be demanded as a matter of strict right. Ordinarily a motion for consolidation of two or more pending actions is addressed to the sound discretion of the trial court, and its action in consolidating or refusing to consolidate pending actions will not be disturbed on appeal in the absence of a manifest abuse of discretion. (Readicker v. Denning, 86 Kan. 617, 619, 122 Pac. 103.) The discretion vested in the court, however, is not an arbitrary or capricious discretion, but an impartial discretion, guided and controlled in its exercise by sound legal principles. It is a legal discretion to be exercised in a manner to subserve and not to defeat the ends of substantial justice. This court has°held that cases should not be consolidated when evidence offered in one of them is likely to be prejudicial to litigants in the other. (Butcher v. State Highway Comm., 139 Kan. 763, 33 P. 2d 152.) See I C. J. S. 1345. In the case before us no charge is made that there was an abuse of discretion on the part of the trial court in overruling the motion to consolidate the actions. Moreover, Gore, who was a party to the second action was not a party to the first action. In such case the ruling of the trial court will not be disturbed. (McCullough v. Hayde, 82 Kan. 734, 109 Pac. 176.)
The defendant objected to the introduction of evidence on behalf of plaintiff on the ground that the first and second cases constituted but one cause of action and that the plaintiff was splitting his cause of action. But the rule against splitting causes of action does not prevent a plaintiff from suing for a part of a single cause of action; it merely precludes him from thereafter maintaining another action for the other portion. Thus, in Madden v. Smith, 28 Kan. 798, it was held, as stated in the syllabus:
“Where there is but a single and indivisible contract, only one action can be maintained for a breach thereof and after such action the plaintiff cannot maintain a second on the ground that he did not recover in the first all the damages he in fact sustained in consequence of the breach.” (Syl. ¶ 1.)
Section 60-765 above quoted provides that “Whenever two or more actions are pending in the same court which might have been joined,” the defendant may, ask for consolidation as therein provided. But where a plaintiff has split up a single cause of action the statute does not contemplate a consolidation of the fragments. In Baird v. U. S., 96 U. S. 430, 24 L. Ed. 703, it was stated:
“ . . . It is well settled that, where a party brings an action for a part only of an entire indivisible demand, and recovers judgment, he cannot subsequently maintain an action for another part of the same demand. Warren v. Comings, 6 Cush., 103. Thus, if there are several sums due under one contract, and a suit is brought for a part only, a judgment in that suit will be a bar to another action for the recovery of the residue.” (p. 432.)
See, also, Insurance Co. v. Bullene, 51 Kan. 764, 33 Pac. 467.
If defendant desires to raise the question as to splitting of the cause of action he may do so by appropriate pleadings in the second case, and we therefore hold the assignment of error cannot be sustained.
Under an instruction given by the trial court, interest was allowed from the date of the filing of the petition. Defendant contends the court committed error in giving this instruction. It is admitted that the record fails to disclose any objection was made to the instruction at the trial, but defendant contends that under Richardson v. Business Men’s Protective Ass’n, 129 Kan. 700, 284 Pac. 599, and State v. Hartsock, 140 Kan. 428, 37 P. 2d 36, where an instruction is clearly erroneous as a matter of law it is not necessary, in order to predicate error upon the giving of the instruction, to make objections to the erroneous instruction before or at the time it was submitted to the jury.
In the Richardson case, at page 705, it was said: “Appellee does not contend that the question now raised by appellant on the instructions was not presented to the court on the hearing of the motion for a new trial.” Also, in the Hartsock case there was a motion for a new trial, where the objection to the instruction was raised.
In the case before us no motion for a new trial was filed. If we concede the instruction was erroneous, the giving of the instruction was a trial error and could not be raised on appeal in the absence of a motion for a new trial. It is therefore clear the cases cited do not support the contentions of the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hooh, J.:
This was an action to recover an alleged overpayment of an attorney’s fee. The defendant, prevailed, and the plaintiffs appeal.
The case has been here before, on appeal from an order overruling defendant’s demurrer to the petition, the judgment being affirmed. In view of the recital contained in the opinion at that time (Kirwin v. McIntosh, 151 Kan. 289, 98 P. 2d 160) a brief narration of the facts will suffice.
Reuben Denton and Zoa Denton, his wife, residents of Osage county, Kansas, died intestate in February, 1935, leaving eight children as their sole heirs. Their estate consisted of , real estate valued at about $11,000 and personal property worth approximately $9,000. Soon after the death of their parents, three of the children- — -the appellants in this action — -entered into a written contract with the appellee, in which he agreed to give them legal advice and to secure for them as soon as possible their respective shares in the estate, for which services they agreed to pay a reasonable fee to be determined by him on the basis of the work required and not to be less than $75 nor more than $200 for each of the three of them. The personal property was distributed or disposed of, apparently without any trouble, and the heirs endeavored to agree upon an equitable division of the real estate or to dispose of it at private sale in order to make distribution. The administrator, appointed for the joint estate, and the appellee assisted in these negotiations. No other means of distribution being found possible, an action to partition the real estate was brought in October, 1936, in which the ap-pellee engaged associate counsel to assist him. The real estate was duly sold, the gross amount realized being about $16,000, from which amount about $4,600 had to be deducted to discharge existing liens. Allowance of $1,700 was made as attorneys’ fees — to five attorneys —and this, together with taxes and court costs deducted, left about $13,350 for distribution to the heirs, the share of each appellant being $1,669.64. Appellee agrees that he and his associate counsel were allowed fees in the partition action aggregating $928.14.
Appellee then collected from the three appellants, the maxiumum fee of $600 fixed in the written contract, without tlieir knowledge of the fee of $928.14 allowed by the court and paid from the proceeds of the sale.
Contending that under the written contract appellee had agreed to do everything possible to get for them their share of the estate, both real and personal, for a maximum attorney’s fee of $600, appellants brought this action to recover an amount equal to the portion of the allowance in the partition action which came out of their distributive share of the proceeds. Appellants being entitled to' three-eighths of the net proceeds of the sale, they contend that three-eighths of appellee’s fee allowed in the partition action came out of their distributive shares, and that appellee should have credited them with such amount on their written contract with him. They accordingly sought recovery of $348.06, that amount being three-eighths of $928.14, as overpayment.
It seems necessary again to make clear, as we did in the former opinion, the nature of this action. It is not an attack either direct or collateral upon the allowances made in the partition suit. It is not as appellee argues, based upon a contention that the appellee had not fully performed the legal services which he agreed to perform under the written contract. There appears no reason to misunderstand the nature of the action. Appellants simply alleged that appellee had agreed to perform for them certain services for a maximum fee of $600, that they paid him such fee but without knowing at the time that he had collected a total of $928.14 in the partition suit and asked to recover the overpayment of $348.06, which came out of their distributive shares.
The primary question presented to the trial court was to determine the meaning of the written contract. If the contract is unambiguous in character, and according to its terms the appellee agreed to take whatever steps necessary to secure to appellants their share of the estate, both real and personal, then judgment should have been for appellants, unless it be found that the written contract had been superseded by another contract between the parties.
Appellee’s contention is that a partition suit was not in the contemplation of the parties at the time the written contract was entered into, and therefore, the allowances made in that action have no connection with the contract. Appellants rely upon the terms of the written contract and allege that they had in mind any steps necessary to be taken to secure their share of the estate.
The contract reads as follows:
“This is an agreement between C. Oakley McIntosh, as attorney, and each of the undersigned parties.
“C. Oakley McIntosh is party of the first part and each of the undersigned a party of the second part.
“Now the parties of the second part are heirs at law of Zoa and Reuben Denton, deceased. They hereby employ Mr. McIntosh to give them legal advice and proceed at once to get for them their respective share of the said estate. Mr. McIntosh agrees to the best of his ability to do all that an attorney could and should do in their behalf, to the effect that they shall each get their partial shares as soon as possible and that they shall each get their full and final shares as soon as possible. Now each of the undersigned parties of the second part hereby agrees to pay a reasonable fee for such services to be determined by Mr. McIntosh according to the amount of work involved. Said fee shall not in any instance be less than $75 or more than $200 per party of the second part.”
It is well to note at the outset that this contract was drawn by appellee, an attorney, to cover an agreement between himself and his clients, who are not attorneys. That the relationship of an attorney to his clients is fiduciary in character, binding him to the highest degree of fidelity to them on account of the trust and confidence imposed, is elementary and requires no support by citation of authorities. In accordance with that basic principle, it is the general rule that in the construing of contracts between attorney and client, where there is any ambiguity, doubts are resolved against the attorney and the construction adopted which is favorable to the client. (7 C. J. S. 1055.) Of course if the client, by statements or actions subsequent to the execution of the contract, has indicated an interpretation inconsistent with that for which he later contends, or where the obvious intent of the parties would be violated by strict interpretation of the written instrument, the general rule does not apply. (7 C. J. S. 1056.) However, we find no ambiguity in the instant contract and the record discloses no acts or statements by the clients tending to give an interpretation inconsistent with its plain provisions. The contract provides: “Mr. McIntosh agrees to the best of his ability to do all that an attorney could and should do in their behalf, to the effect that they shall each get their partial shares as soon as possible and that they shall each get their full and final shares as soon as possible” (italics ours). It cannot be questioned that the full shares of appellants included their interest in the real estate. In his testimony appellee admitted that the terms of the contract included both realty and' personalty. Indeed, he narrated his efforts and introduced copies of correspondence to show what he did to get the heirs to agree on a division, or to sell the real estate at private sale in order that they might get their full share of the estate. His only contention is that when he drew the contract it was not thought that a partition suit would be necessary to get final settlement of the estate. He does not contend, however, that there was at that time any understanding that an additional fee would be claimed if a partition action were found necessary.
Appellee did not advise his clients that he had been allowed fees by the court and says that he did not think it incumbent upon him to do so. The record discloses an absence of that frankness with clients and'with the court which we should expect to find under such circumstances. The only testimony which can possibly be said to indicate an agreement between the parties, subsequent to the written contract, is appellee’s statement that he told one of the appellants that he couldn’t get any settlement except by partition and that “I told her the expenses would come out of the partition suit, and I believe she asked me if all expenses and I told her they would be. She told me to go ahead and partition it.” Even so, advice to her that the expenses would come out of the proceeds of the sale was not advice that an additional attorney’s fee would be expected. However that may be, the trial court did not find that there was a subsequent oral contract that additional fees were to be paid. We now turn to the finding of the trial court.
Following formal recitals, the journal entry of judgment reads:
“And now on this 19th day of July, 1940, the court being fully advised in the premises finds that the contract sued upon and set forth in the petition was completely performed by the defendant and that the defendant should have judgment against the plaintiff for the costs of this action.”
The trial court’s judgment is based solely on the written contract and the finding is that the “contract sued upon and set forth in the petition was completely performed by the defendant.” Such a finding was not within the issue raised by the pleadings or by the evidence. Appellants neither alleged in the petition nor attempted to prove that appellee did not completely perform the services called for by the contract. They admitted that he performed those services. They only contended that he had collected more for the services t-han called for by the contract.
It is perfectly clear that both parties had in mind both the real and the personal property when they entered into the contract in which appellee agreed to do whatever an attorney “could and should do” to get them their full share of the estate. There being no ambiguity in the written contract, and there being no showing or finding that the written contract was superseded by a later contract, oral or written, appellants were entitled to judgment.
One further matter requires attention. Appellee alleged in his answer that Hattie Bixby, one of the plaintiffs, had signed an agreement on August 29, 1938 — copy of which was attached and made a part of the answer- — whereby she accepted $25 as a compromise settlement of the controversy concerning the attorney’s fee and released all further claim in the matter. Appellants filed no reply. They filed a motion for judgment on the pleadings and a demurrer to the answer, both of which were overruled. The matter was not discussed by appellants either in their brief or oral argument. The record discloses that Hattie Bixby testified concerning the circumstances under which the compromise settlement was urged upon her but did not deny its execution. Appellants did not ask to have the accord and satisfaction set aside, did not attack it by motion or otherwise in the pleadings, did not tender return of the $25 nor offer to have it credited on the judgment sought. On this record the release must be accepted as final as far as Hattie Bixby is concerned and the judgment of the trial court as to her claim will not be disturbed.
The only matter remaining for consideration is the amount of the judgment to which appellants are entitled. Appellee asserts that in any event appellants would not be entitled to full recovery of the amount asked since he also represented in the partition action another plaintiff, LeRoy Denton, and also represented as guardian one of the defendants, an insane person, and that his associate counsel also represented him as such guardian. For that reason, it was urged by appellee when the case was here before, it was impossible for either court or plaintiffs to segregate or separate the allowances for attorney’s fees made in the partition action and determine what portion was chargeable to appellants. We accept and adopt appellee’s contention in that regard. That being true, it would certainly be inequitable to penalize appellants on that account and deny recovery. Especially so in view of appellee’s failure to disclose all the facts either to the court or to his clients. The defendant’s liability is established. It would confer no favor upon him to return the case to the trial court for further proceedings to determine the amount of the judgment. It would only prolong the litigation over a liability which defendant cannot escape. The facts are before us for computation. Under such circumstances, both in compliance with the mandate of the code that this court enter such final'judgment as it deems justice to require (G. S. 1935, 60-3317) and in harmony with the rule followed by this court in a long line of decisions (Harmon v. Coonrod, 148 Kan. 146, 154, 79 P. 2d 831; Cox v. Trousdale, 138 Kan. 633, 645, 27 P. 2d 298, and cases there cited), final judgment will here be rendered. We think the method of computation advanced by appellants is an equitable one under all the circumstances. They do not here attack any part of the allowance of $928.14 made in the partition action. They only ask refund of $348.06, the amount by which their net share of the estate was thereby depleted. Deducting one-third of this $348.06, on account of the release by Hattie Bixby, leaves $232.04, for which amount appellants Mary Powell Kirwin and Ellen Den-ton are entitled to judgment, together with costs of the action.
The conclusion stated makes it unnecessary to consider other contentions of appellants.
The judgment is reversed and the case remanded with instructions to enter judgment for the defendant as to the claim of Hattie Bixby, and to enter judgment against the defendant and in favor of plaintiffs Mary Powell Kirwin and Ellen Denton for $232.04 and costs of the action.
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The opinion of the court was delivered by
Smith, J.:
This was an action for a declaratory judgment. The trial court sustained a demurrer to the petition. Plaintiff appeals.
The petition alleged that plaintiff was a municipal corporation, being a city of the second class, and gave the residence of certain defendants as in Missouri and Kansas; that about the 16th day' of June, 1901, plaintiff executed an agreement in writing with George H. Thompson and Alma Thompson, husband and wife, for a consideration of one dollar and the conveyance of certain rights in and to lands described, by which plaintiff agreed to furnish water for general farm use-and dairy purposes under certain specified conditions on-and to a half section of land in Montgomery county, of which land the Thompsons were then the owners; that at that time plaintiff had no authority to enter into a contract for obtaining water for public purposes for a period of more than twenty years and the agreement was ultra vires and void under the provisions of the Laws of 1897, chapter 82, section 12.
The petition further alleged that on or about the 26th day of June, 1901, the Thompsons, being owners of the half section, for a valuable consideration conveyed to plaintiff by warranty deed a portion of the half section about fifty feet square described by metes and bounds in the petition, for the purpose of erecting and maintaining a storage tank thereon in connection with the waterworks plant belonging to plaintiff; that in the same deed the Thompsons conveyed to plaintiff the right to enter upon the half section for the purpose of constructing, maintaining and repairing a water pipe line to and from the storage tank. A copy of the warranty deed was attached to the petition.
The petition further alleged that shortly thereafter plaintiff constructed a standpipe upon the fifty-foot tract referred to and also constructed a ten-inch pipe line from the storage tank across the half section to a lake lying east of this land, and for a number of years plaintiff procured its water supply from this lake and pumped the water through this pipe line over this land to the storage tank, from which point the water was distributed under gravity pressure to the consumers.
The petition alleged further that about the first of January, 1912, the city abandoned the lake as a source of water supply and began drawing its water from the Verdigris river and was doing so at the time the petition was filed; that after this change was made the city had no further use for the pipe line to the lake and ceased to use it for filling its standpipe but was using the standpipe and continued to use the standpipe and land deeded for a standpipe, the water being pumped to this standpipe from the Verdigris river and no longer from the lake; that from the date of the deed referred to plaintiff had been in open, notorious, hostile and continuous possession of the tract of land.
The petition alleged also that at all times since the execution of the so-called agreement set out the plaintiff had furnished and was at the time the action was commenced furnishing water for general farm use and dairy purposes from the ten-inch pipe line to the land described and to the occupants of it.
The petition further alleged that this land was not and had never been within the city limits of plaintiff and its occupants were not citizens or residents of the city; that at the time the action was begun the governing body of the city of Cherryvale was a board of commissioners and at the time of the execution of the agreement the governing body was a city council and the present governing body of the city was entirely different from the governing body of the city at the time the agreement was executed, both as to its form and as to its personnel, and that none of the present city officers were officials of the city at the time the agreement was executed; that the defendant Frances Letitia Wilson was the owner of an undivided one-half interest in and to the fee of the half section mentioned except the fifty-foot tract, and that defendant Miller or his assigns were the owners of an undivided interest in and to the fee, and that defendant Rousel claimed some right or interest in the land.
The petition then contained the following allegation:
“That on or about the 5th day of December, 1939, this plaintiff informed the owners of the said land, through their agent, Sullivan Lomax, of its intention to discontinue the furnishing of water to the said land and to the occupants thereof and to peaceably enter upon the said land and remove therefrom its said ten-inch water pipe line, and asked the consent of the said owners, which consent was then and there refused; that efforts have been made to arrive at an amicable adjustment of the claims of the parties hereto, with respect to the discontinuance of the water service and the removal of the said pipe line, but without success; that a controversy has arisen between the plaintiff and the defendants as to the legal construction of the so-called agreement and the rights of the respective parties under same, and as to whether or not the city of Cherryvale may properly discontinue said water service and remove its said pipe line, without infringing upon the rights of others or jeopardizing its own rights in the tract of land which it owns for a standpipe site.”
The prayer of the petition was as follows:
“Wherefore, the plaintiff prays for a declaratory judgment from this court, fixing and determining the rights of the parties hereto under the so-called agreement and the deed as above set out, declaring said so-called agreement to be void and of no effect and that the plaintiff have a legal right to discontinue supplying water to the said land and to peaceably enter upon the said land and remove its pipe line therefrom, and confirming the ownership of the city of Cherryvale in and to the tract of land purchased for a standpipe site.”
The water right-of-way agreement which was attached to the petition, after describing the land and the parties, provided:
“The city of Cherryvale, party of the first part, agrees: to furnish water for general farm use and dairy purposes to the party of the second part, his heirs, executors and administrators, at four points on the above described lands, for so long a period of time as the party of the first part shall have and maintain any part of the system of city water-works now being constructed upon said lands. The points at which the ‘water boxes’ from which the water shall be supplied to the party of the second part, shall be selected by the said second party at a distance of twenty feet from the water main, and water shall be supplied in sufficient quantities as may be necessaiy for house and barn purposes, and to supply all livestock actually owned or kept on the above described lands, by the party of the second part.”
This agreement was entered into June 28, 1901. The deed, which was entered into June 26, 1901, stated that the parties bargained and sold the land described, and contained the following clause:
“And the grantors herein, in addition to the absolute conveyance above made, hereby grant and convey to the said city of Cherryvale, the right and privilege to enter upon, to construct, maintain and repair a water-pipe-line and mains on the northeast quarter of section twenty-one (21) and the northwest quarter of section twenty-two (22), in township thirty-two (32), in range seventeen (17), in the said county of Montgomery and state of Kansas, to and from said storage tank.
“Should the lands hereby conveyed, and the rights and privileges hereby granted, ever cease to be used by the grantee for the purpose of maintaining a water-works plant, then and in that event, all the covenants herein made shall become null and void, and all lands and rights herein conveyed shall revert to the person or persons then owning the adjoining lands, after the removal of the plant.”
The defendants filed a motion asking the court for an order directing the plaintiff to separately state and number its causes of action for the reasons that it appeared from the petition that plaintiff had attempted to set forth a cause of action for a declaratory judgment construing a contract and deed, and had stated therein and blended therewith a cause of action asking the court for an order or judgment finding and determining that it had a legal right to enter the premises of defendants for the purpose of taking up and removing therefrom a ten-inch water pipe line without the consent of defendants and had attempted to set up therein a cause of action for the cancellation of a written instrument, and that it had attempted to set up a supposed cause of action for the purpose of quieting its title to a tract of land which it claimed to have purchased for a standpipe location, and for the reason that all of these causes of action were blended together so it was impossible to tell where one began and the other ended.
After colloquy the court made the following statement in its journal entry:
“And the court, having heard arguments of counsel for and against the said motion, inquires of the plaintiff if it admits that the so-called agreement and the deed alleged in the petition are a part of one transaction and to be construed together, and counsel for the plaintiff thereupon states that such is the plaintiff’s theory of the case and that the said so-called agreement and deed may be construed together. The court then finds that the said motion should be overruled.”
The defendants interposed a general demurrer to the petition on the ground that it did not state facts sufficient to constitute any cause of action in favor of plaintiff and against defendant. This demurrer was sustained and the plaintiff has appealed. Two arguments are presented to this court on appeal:
The first one is on the question of whether or not the petition stated a cause of action for a declaratory judgment.
The second argues the question of whether or not the plaintiff was entitled to have the construction given the two instruments to the effect that it might remove the ten-inch intake line and use the pipe so removed for other purposes in the water system even though in so doing it would be forced to discontinue to furnish water for general farm and dairy uses to defendants.
The city argues that it has the right to remove the ten-inch abandoned intake line and the right to discontinue furnishing free water to defendants and that the exercise of those rights would not terminate its ownership in the real estate or easements conveyed to the city, now being used.
We shall first deal with the question of whether or not the petition stated a cause of action upon which a declaratory judgment should be rendered.
The statute pursuant to which actions for declaratory judgment are brought is G. S. 1935, 60-3127 to 60-3132. These sections provide, in part, as follows:
“In cases of actual controversy, courts of record within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and no action or proceeding shall be open to objection on the ground that a judgment or order merely declaratory of right is prayed for. Controversies involving the interpretations of deeds, wills, other instruments of writing, statutes, municipal ordinances, and other governmental regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.” (G. S. 1935, 60-3127.)
“This act is declared to be remedial; its purpose is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor; and it is to be liberally interpreted and administered, with a view to making the courts more serviceable to the people.” (G. S. 1935, 60-3132.)
Since the passage of this act this court has consistently held that an action could not be brought pursuant to it unless there was an actual controversy between the parties. (See West v. City of Wichita, 118 Kan. 265, 234 Pac. 978; also, Purity Oats Co. v. State, 125 Kan. 558, 264 Pac. 740; also, Williams v. Flood, 124 Kan. 728, 262 Pac. 563.)
This rule requires us to examine the petition in this case to ascertain whether it sets out facts which constitute an actual controversy. The paragraph which contains these allegations has already been quoted here. It states that the plaintiff informed defendants of its intention to discontinue the furnishing of water and to remove its ten-inch pipe line and that plaintiff asked consent of the owners, and that this consent was refused. The petition then states that efforts had been made to arrive at an amicable adjustment of the claims of the parties but without success. Are the above facts a sufficient allegation of an actual controversy between the parties to warrant the issuance of a declaratory judgment thereon?
Nowhere in the petition is there any allegation of what the defendants claim,their rights to be under the terms of the deed and contract, nor is there any allegation that the defendants would take any particular action to the detriment of the city if it should discontinue the furnishing of water to defendants. It is true we are "able to ascertain the existence of a difference of opinion between counsel for the parties from an examination of the briefs, but the facts upon which the party seeking a declartory judgment relies and just what the controversy is must clearly appear in the pleadings. This must be the rule, else courts would be entering declaratory judgments and parties would claim the judgments applied to some situation the facts of which were not before the court. This would tend to make the courts of less service to the people rather than of more service, as this statute was intended to do.
Plaintiff points out that the ground upon which the defendants filed their demurrer was that the petition did not state facts sufficient to constitute a cause of action. Plaintiff argues that the proper ground was that the trial court did not have jurisdiction.
It is rare that a demurrer is an appropriate pleading for the defendant to file to a petition for a declaratory judgment. Assuming there is an actual controversy between the parties, the petition should state the facts out of which the controversy arose, should state clearly the view or claim of plaintiff, and also state clearly the view or claim of the defendant, and the court should be asked to adjudicate the controversy. The appropriate pleading for defendant to file is an admission that the controversy arose from the facts stated by plaintiff, and that plaintiff’s contention is correctly stated ; also, that defendant’s contention is correctly stated, if, of course, defendant agrees that the matters are so pleaded. If defendant thinks the facts giving rise to the controversy are not accurate or fully stated, or that the contention of the plaintiff or that the contention of the defendant is not accurately or fully stated, his answer should plead the facts and the contentions as he understands them to be. If defendant pleads the facts and the contention is contrary to that pleaded by plaintiff, plaintiff by reply should either admit those, or deny them. Normally, a declaratory judgment action is not well suited to a case in which there is a controversy as to how the contentions of the parties arose, or as to what they are; these things should be agreed upon in the pleadings, or some other form of an action should be brought.
The demurrer in this case, however, did raise the question of whether the petition stated a cause of action for a declaratory judgment.
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 to recover for damages to property sustained in an automobile collision. The action was commenced in the city court and from an adverse judgment the defendant appealed to the district court, where the cause was tried on an agreed statement of facts, which showed the following: On November 3, 1939, there had been a football game at Lawrence and for a time thereafter the U. S. highway between Lawrence and Topeka was heavily traveled. At a point about three miles east of Topeka, and about six p. m., there was a collision between cars not here involved. By reason of its occurrence, other cars were stopped on the pavement. Plaintiff approached the place of the above collision and brought his car to a stop immediately back of the car nearest to him in the line of the stopped cars, all of the stopped cars being on the right-hand portion of the paved highway. The pavement was eighteen feet wide and when stopped the right side of plaintiffs car was about two feet from the edge of the pavement. After plaintiff’s car was so stopped and standing for at least three minutes and while plaintiff was sitting at the wheel and while the motor was running the defendant drove his car into the rear of the plaintiff’s car at a point about two feet to the right of the left side, causing the damages complained of. Prior to the collision of the two cars here involved, defendant was driving in the rear of a truck and was unable to see plaintiff’s car until he passed the truck and was about eighty feet to the rear of plaintiffs car. It was expressly admitted that defendant was negligent in that he was driving his car at an excessive rate of speed and was unable to stop his car within his range of vision. Immediately prior to the collision, defendant was proceeding three feet to the left for each fifteen feet of forward movement. Both plaintiff and defendant had the front and rear lights shining on their respective cars, and the highway for at least one hundred feet immediately to the rear of the place where the cars collided and the shoulder of the highway to the right was clear and unobstructed. Plaintiff’s car immediately before the accident was worth $155 and immediately after was worth $40, and he lost the use of it for four days, the cost of renting or hiring another being $3.50 per day. Plaintiff’s car was not repaired by him.
The trial court, after consideration of the agreed statement of facts and argument of counsel, found the defendant was guilty of negligence, which was the proximate cause of the accident, and that the plaintiff was free from contributory negligence and entitled to recover judgment for the amount agreed upon in the statement of facts, and it rendered judgment for plaintiff against defendant for $124 (actually the stipulated amounts totaled $129, but there is no complaint by plaintiff). Defendant’s motion for a new trial was denied, and he appeals.
In substance, the specifications of error, as restated and amplified in the briefs, present two questions :
1. Was plaintiff guilty of contributory negligence; and
2. Did the trial court apply a proper measure of damages?
Appellant calls our attention to the rule that where the facts are undisputed and but one conclusion therefrom can be drawn, whether such facts constitute negligence is a question of law (Chanute v. Higgins, 65 Kan. 680, syl. ¶ 1, 70 Pac. 638). He contends that inde pendent of the traffic statute hereafter mentioned, plaintiff was guilty of negligence as a matter of law in that if plaintiff had stopped his car farther to the right, the defendant’s car which was veering to the left, would not have struck plaintiff’s car. We shall not discuss this contention further than to say that independent of the statute, plaintiff, approaching the line of stopped cars, was not negligent in stopping behind the rear one instead of moving farther to the right or over on the shoulder of the highway. In the absence of statute, permitting a car to stand on the highway is neither illegal nor negligent. (42 C. J. 1006.)
Appellant next directs our attention to Laws 1937, chapter 283, section 70 (G. S. 1939 Supp. 8-570), and argues that plaintiff’s violation of that statute was negligence per se. For our purposes, the statute reads:
“(a) Upon, any highway ... no person shall stop, park or leave standing any vehicle . . . upon the paved . . . part of the highway when it is practical to stop, park or so leave such vehicle off such part of said highway ...(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.”
Appellant argues that it was practical for plaintiff to have moved off the paved portion of the highway and onto the shoulder thereof, and that because he didn’t do so he violated the statute. That argument ignores the latter part of the statute and the factual situation. The highway was blocked by the first collision which caused the succeeding traffic to stop. The record is silent as to the condition of the cars there involved, but that their condition caused a stoppage in the flow of traffic is admitted. No one of the cars in that line of traffic may be said to have been stopped at the wish or desire of the driver — and that is what the statute denounces — but because conditions ahead compelled the stopping. Under the conditions existing and in the exercise of ordinary care, it was impossible for drivers of the cars in the line of traffic and for the plaintiff to avoid stopping. The fact plaintiff did not drive his car farther to the right, or on the shoulder of the highway, did not make him guilty of violating the above statute. In view of the above, perhaps it is not necessary to discuss appellant’s contention that violation of the above statute made plaintiff guilty of negligence per se, in support of which he cites Burrell v. Horchem, 117 Kan. 678, 232 Pac. 1042. This much may be said: In that case, it was held to be actionable negligence for a father to permit his twelve-year-old son to drive an automobile on the public highways in violation of statute. But it has been held that mere violation of a statute regulating traffic is not of itself sufficient to make the driver guilty of actionable negligence; to make him liable it must appear the violation contributed to the injury and was the proximate cause of it (Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906). We think that under the circumstances disclosed, it may not be said that, as a matter of law, plaintiff was guilty of negligence contributing to his loss and barring his recovery. The trial court did not err in its conclusion.
Appellant complains the trial court adopted the wrong measure of damages. This complaint is limited. He does not object to so much of the judgment as is included in the difference between the value of the car just before the accident, i. e., $155, and the value just after, i. e., $40, or the net amount of $115, but that no allowance should have been made for the remaining $9 of the judgment, which rests on loss of use for four days. No citation of authorities in support of appellant’s meager argument is contained in the brief, and this court might well conclude that counsel, after diligent search, had not been able to find any, in which case the judgment should be affirmed (4 C. J. S., 1906). We are not now advised by the statement of agreed facts whether plaintiff’s car was used for business or pleasure, or whether it was damaged beyond repair; all we know from the statement is that he lost use of it for four days and that he had not had it repaired. While there is some diversity of decisions on whether the car is used for business or pleasure, there are many cases holding recovery may be had for loss of use even though the car is used wholly for pleasure. (See 42 C. J. 1291; 5 Am. Jur. 907, Annotation 32 A. L. R. 711, 713; 5 Berry Automobiles, 7th ed., § 5.232, p. 369; 6 Blashfield Cyc. Auto. Law and Prac., Perm, ed., § 3417, p. 36, et seq.; Huddy Cyc. Auto. Law, 9th ed., Vol. 17-18, § 254, p. 531.) It has not been made to appear the trial court erred in allowing $9 for plaintiff’s loss of use of his car.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This action involves primarily the jurisdiction of the probate court and of the district court, on appeal from the probate court, to order distribution of an estate in accordance with the terms of a family settlement made by all of the heirs, where decedent died intestate.
The appeal to this court is from the order of the district court overruling the demurrer of two heirs to the intervening petition of the widow filed in the district court after two heirs had appealed from the order of final settlement and distribution made by the probate court. The probate court and the district court decreed the estate should be settled and distributed in accordance with the written contract. The heirs are Ambrose L. Erwin and Forest N. Erwin, sons of Frank A. Erwin, deceased, by prior marriage, and decedent’s widow. The sons were appellants in the district court and are the appellants here.
A preliminary subject requires attention. Appellee urges the appeal should be dismissed. She contends appellants partially complied with the judgment of the district court and that they have therefore waived their right of appeal. In view of the meager and rather incomplete circumstances upon which the contention is based we prefer to entertain the appeal.
Frank A. Erwin died intestate June 30, 1939. Appellee, the widow, was duly appointed and qualified as administratrix of decedent’s estate July 5, 1939. On the next day the heirs entered into a written contract for the division of decedent’s estate. Shortly thereafter the widow brought an action in the district court to set aside that contract upon the ground of fraud. While that action was pending the heirs executed a second contract on May 8, 1940. The last contract relates it was executed for the purpose of adjusting, settling and compromising their claims. By its express terms the first contract became null and void and the action of the widow in the district court was to be dismissed upon the execution of the second contract. The purpose of the second contract is disclosed in paragraph 15, which reads:
“That party of the first part and parties of the second part agree to assist to the best of their ability to effect a quick and proper settlement of the estate in accordance with the terms of this agreement and that the making and carrying out of the terms and conditions of this agreement will restore the confidence, friendship and affection which existed during the lifetime of our father and husband, Frank A. Erwin.” (Emphasis supplied.)
Paragraph 3 of the contract provided:
“That party of the first part shall pay all costs and attorneys’ fees, accrued or to accrue in the matter of the estate of Frank A. Erwin, deceased, pending in the probate court of Pratt county, Kansas.”
The contract affected only rights and interests in the real estate and personal property which belonged to the estate. The only real estate was the homestead. The contract referred to an annuity policy in the Victory Life Insurance Company. The terms of that policy are not before us. That fact, however, is immaterial, as the contract provided the policy “shall remain in full force and effect as now written, subject to any further agreement by parties of the second part and party of the first part.” The contract provided for the execution and delivery of a deed to the homestead and a bill of sale to personalty in accordance with the terms of the contract.
On July 16, 1940, the administratrix filed her petition in the probate court for final settlement and distribution of the estate in accordance with the terms of the last contract. The contract was made a part of the petition. Appellants moved to strike that portion of the petition which referred to the contract of settlement on the ground the probate court was without jurisdiction to make the settlement in accordance with the terms of the contract. It appears their contention was, the probate court had jurisdiction to make a decree of distribution only in accordance with the law of descent and distribution, as the title to property existed between the heirs at the death of decedent, and that the probate court had no jurisdiction over the private contract of the heirs. The motion was overruled, evidence was heard, and a decree of final settlement and distribution was made in accordance with the terms of the contract. The decree contained the further provision:
“It is further ordered and decreed by the court that should any of said heirs fail to comply with the order of this court and to comply with the terms of said contract for a period of 30 days from this date, then any sum or sums not so paid shall be a lien upon the property owned by said estate situated in the city of Pratt and hereinbefore described.”
Appellants appealed to the district court. In that court the widow, as an individual heir, asked and obtained leave to file an intervening petition. Time was granted appellants to answer. They demurred to the petition on the ground it did not state a cause of action and disclosed on its face the district court was without jurisdiction of the subject matter. The demurrer was overruled. Appellants stood on their demurrer and judgment was rendered in accordance with the contract of family settlement. The petition, insofar as now material, in substance alleged: Frank A. Erwin died June 30, 1939. Gertrude B. Erwin was the duly appointed, qualified and acting administratrix of decedent’s estate. All claims against the estate had been satisfied except the expenses and costs of administration. Decedent at his death owned the following real estate and personal property (description). For the purpose of an amicable settlement and distribution of the estate the heirs entered into the last contract of final settlement. (The contract was made a part of the petition.) Petitioner had been at all times and was now ready, able and willing to perform the contract and now offered to perform it. On July 16, 1940, she filed, as administratrix, her petition in the probate court for final settlement and distribution in accordance with the family settlement. (Copy of the petition was attached.) The probate court ordered final settlement and distribution in accordance with the contract of family settlement. (Copy of decree was attached.)
The prayer was for judgment of final settlement and distribution in accordance with the contract of family settlement and that if appellants refused to perform their obligations thereunder within a reasonable time, that judgment be rendered against them for the value of the property they agreed to convey and deliver and that the judgment be made a lien upon their interest in the homestead.
We shall first consider appellant’s contention that neither the probate court nor the district court had jurisdiction of the subject matter, that is, the contract involving the settlement of the estate. The theory of their contention is, first, the contract was an agreement between private individuals and could not be enforced through probate proceedings. Their theory is, further, that it- was unnecessary the contract should be adjudicated in oz'der to obtain a decree of settlement and distribution.
Manifestly, the contract of family settlement was between private individuals. Such a contract is always between private individuals, namely, heirs, devisees or legatees. The property, however, which was the subject of their contract was the property of an estate and that estate was in the process of administration in a court vested with jurisdiction and power to settle and distribute estates.
Next, it was not a question of adjudicating the validity of the contract. The only question was how the estate should be distributed. It must be remembered the validity of the contract was never questioned and is not questioned now. Of course, it was not necessary to have any contract of family settlement in order to obtain a decree of final settlement and distribution. When, however, such a contract, conceded to be valid, was in fact executed, it then became necessary to have that contract submitted to and approved by the probate court in order to obtain a decree of settlement and distribution in accordance with the terms of that contract. The probate court has exclusive jurisdiction of the final settlement and distribution of decendent estates. Due notice of final settlement was given. All interested parties were present at the hearing. They could not stand by and permit the probate court to enter a final decree of settlement and distribution according to the law of descent and distribution and thereafter assert contrary rights under a private contract.
It also appears the parties intended the estate should be settled and distributed according to the terms of their contract. Paragraph 3 of the contract, previously noted, directed payment by the widow of costs and attorney fees, accrued or to accrue, in connection with the settlement of the estate then pending in the probate court. A decree in conformity with that provision -could have been made by the probate court only by virtue of the private contract between the heirs. Moreover, the parties by paragraph 15 of the contract, also previously noted, expressly agreed to effect a quick and proper settlement of the estate in accordance with the terms of the agreement. Compliance with that agreement could not have been effectuated better by the administratrix than by doing exactly what she did, namely, by petitioning the probate court to make distribution of the estate in accordance with the contract of settlement. We think the contract contemplated just that and did not contemplate the contract should become the source of possible later litigation. The express purpose of the contract was to adjust, compromise and settle the claims of the heirs in order to restore the confidence, friendship and affection which had existed during the lifetime of decedent. Such contracts have been enforced frequently by probate courts, whether they provide distribution upon a plan different from that prescribed by the statute of descent and distribution or the statute of wills. (Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021; Hirt v. Bucklin State Bank, 153 Kan. 194, 109 P. 2d 171, and cases therein cited.) The modern tendency is to extend the jurisdiction of the probate court in respect to matters incident and ancillary to the exercise of its recognized jurisdiction. (15 C. J. 1012; 21 C. J. S., §§ 301, 304; In re Osborn’s Estate, 99 Kan. 227, 229, 161 Pac. 601; Myers v. Noble, supra, pp. 436, 437.)
The new probate code, however, conclusively settles the question of the jurisdiction of both the probate court and the district court in the instant ease. It is true decedent died June 30, 1939, and that the new probate code did not become effective until July 1, 1939. Administration of the estate was, however, commenced after the new code became effective, namely, July 5, 1939. The procedure under the new code was applicable. (G. S. 1939 Supp. 59-2602.) The new code requires, among other things, that the petition for final settlement state the nature and character of the respective claims of the heirs, devisees and legatees. (G. S. 1939 Supp. 59-2247.) The pertinent portion of the new code, which pertains to the hearing of the petition for and the' decree of final settlement, provides :
. . Upon such settlement and allowance the court shall determine the heirs, devisees, and legatees entitled to the estate and assign the same to them by its decree. The decree shall name the heirs, devisees, and legatees, describe the property, and state the proportion or part thereof to which each is entitled-Said decree shall be binding as to all the estate of the decedent, whether specifically described in the proceedings or not. . . . When the final decree includes real estate, such decree, or a certified copy thereof, may be entered on the transfer record of the county clerk of the proper county.” (G. S. 1939 Supp. 59-2249.) (Emphasis supplied.)
We think the above provisions of the new code clearly indicate the lawmakers intended every claim to an estate or to any portion thereof should be presented to the probate court in order to facilitate prompt and orderly distribution of decedent estates. If, in the process of administration, a question arises over which the probate court has no jurisdiction, the new code provides both the procedure and the remedy. G. S. 1939 Supp. 59-2402, reads:
“In any proceeding pending in the probate court when it appears that a decision upon any question of which the probate court does not have jurisdiction is necessary to a full determination of the proceeding, such question shall be certified by the probate court to the district court having appellate jurisdiction thereof, which court shall proceed to hear and determine the same as though an action involving that question had been filed originally therein. The decision of the district court, when final, shall be certified to the probate court in like manner as a decision upon appeal.”
The new code provides for appeals to the district court, and expressly determines its jurisdiction and power. The pertinent portion of section 276, chapter 180, Laws of 1939, reads:
“Upon the filing of the transcript the district court, without unnecessary delay, shall proceed to hear and determine the appeal, and in doing so shall have and exercise the same general jurisdiction and power as though the controversy had been commenced by action or proceedings in such court and’ as though such court would have had original jurisdiction of the matter. The district court may allow or require pleadings to be filed or amended.” (G. S. 1939 Supp. 59-2408.)
Appellants invoked the jurisdiction of the district court by appeal. The real issue, and the only issue, was the same in the district court as it was in the probate court, namely, whether the pro bate court had jurisdiction to distribute the estate in conformity with the contract of family settlement. The district court properly decided the probate court was vested with such jurisdiction. The issue was not changed by the intervening petition which was filed by the widow in the district court pursuant to statutory authority'. It set forth the contract and narrated what had transpired in the probate court. It may have contained some surplusage, but it was good as against a general demurrer. Nor was the demurrer good on the ground the district court had no jurisdiction of the subject matter.
Appellants also contend the intervening petition was designed to obtain specific performance of a contract or damages in the alternative. If the petition properly could be so construed, the district court had common law jurisdiction of such an action and the result is the same. The demurrer was properly overruled. The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment on a stockholder’s liability in behalf of an insolvent bank.
The action was tried on the pleadings to which certain exhibits and a trust agreement were attached. No material issue of disputed fact was involved.
It appears that the late Henry Fellhoelter, Sr., was a Sheridan county pioneer who in his lifetime amassed a considerable estate consisting of land and personal property which included 52 shares of stock in the Grinnel State Bank. He died testate on February 1, 1938. By his will he devised certain lands to eight of his sons and daughters, certain bequests for religious purposes, and the remainder of his estate to his widow. His son Henry Fellhoelter, Jr., was named as executor, and qualified on February 26, 1938.
On August 24, 1935, the Grinnel State Bank was in financial difficulties, and under the supervision of the bank commissioner a trust was created by some parties interested in saving the bank. By its terms the stockholders were to pledge and hypothecate to the trust all their stock (except qualifying shares for each director), and the trustees were to work out the rehabilitation of the bank. Accordingly, Henry Fellhoelter, Sr., endorsed 47 of his 52 shares to the trustees, and it may be presumed that the latter endeavored to extricate the bank from its difficulties. However, on August 20, 1939, the bank closed its doors for insolvency. A receiver was appointed, and the routine notices and claims of liens on the properties of the stockholders for the imposition of their liability were duly given and filed. Meantime, Fellhoelter’s estate was being administered under the executorship of his son, defendant herein, and this action was begun to recover on the so-called double liability imposed by statute (G. S. 1935, 9-110) on stockholders of insolvent banks. There is no suggestion that the amended statute of 1937 concerning bank stockholders’ liability (G. S. 1939 Supp., 9-110) has any bearing on the matters in issue.
Plaintiff pleaded the material facts. In his answer the executor admitted that when the testator died he was the owner of five shares of stock in the plaintiff bank, but denied the testator’s ownership of the other 47 shares because of the trust agreement of 1935 pursuant to which “Henry Fellhoelter, Sr., endorsed and transferred 47 shares of the capital stock of said bank then owned by him to said trustees, for the purposes in said trust stated.”
Defendant further answered that those 47 shares had not been retransferred to Fellhoelter, Sr., nor to the defendant; and neither defendant nor the testator had exercised or claimed any rights of ownership of the 47 shares since their assignment to the trustees in 1935.
Plaintiff filed a motion for judgment on the pleadings, and defendant filed a motion to dismiss on various grounds but chiefly because the testator’s estate was in course of administration in the probate court and that the district court had no jurisdiction.
Defendant’s motion was overruled; plaintiff’s motion was sustained, and judgment was entered accordingly. Hence this appeal.
Defendant first contends that the district court had no jurisdiction of the action because plaintiff’s claim for the liability on the testator’s estate, if valid, should have been presented to the probate court for allowance under the provisions of the new probate code which was in effect ere this alleged stockholder’s liability accrued. (Laws 1939, ch. 180, effective July 1; G. S. 1939 Supp., 59-1a01 et seq.)
Section 59-2239 provides that where any estate is in process of administration at the time it took effect and in which the executor had not been discharged, all demands against the estate, “including any demand arising from or out of any statutory liability of decedent,” which have not been exhibited as required by the act within nine months after it took effect should be forever barred, etc. But was this new statutory provision pertinent or applicable to the matter at hand? The testator died on February 1, 1938, and his son qualified as executor on February 26,1938. Under the then existent nonclaim statute, all demands against the testator’s estate not exhibited within one year thereafter were barred. (G. S. 1935, 22-701, 22-702.) The year given for the filing of claims terminated on February 26, 1939, some four months before the new probate code took effect. That time was not extended by the enactment of the new probate code. (Siefkin v. Siefkin, 150 Kan. 396, 92 P. 2d 1005.) The testator’s estate was in process of administration under the old law; and but for some fortuitous circumstances it would have been closed before the new probate code took effect. Had the estate been closed the bank stock would have been disposed of and title vested in somebody to whom the insolvent bank could look for the payment of the stockholder’s liability. As the matter stood, however, the estate not having been closed nor the bank stock disposed of or disti’ibuted, the executor was the ad interim title holder to whom the bank was bound to look for payment. (Farmers State Bank v. Callahan, 123 Kan. 638, 256 Pac. 961; id., 126 Kan. 729, 271 Pac. 299; Farmers State Bank v. Mitchell, 143 Kan. 286, 289, 55 P. 2d 423.)
The statutory liability of shareholders in an insolvent bank is imposed by G. S. 1935, 9-110. By another provision of statute such liability becomes a lien on the property of the stockholder for its satisfaction. In part, it reads:
“Said double liability shall be a lien on the property of the stockholders superior and prior, and which shall be preferred, to all liens or encumbrances which may attach to or upon the stockholders’ property subsequent to the closing of the bank.” (G. S. 1935, 9-156.)
It will hardly be contended that under the old probate code, the probate court had jurisdiction to foreclose liens on property. But lien or no lien, under the old law, any demand against an estate could be established in any court of competent jurisdiction, and it was quite time enough after judgment for the executor (or the judgment creditor) to exhibit the judgment in the probate court, not to have it allowed, but to have it expeditiously paid without resort to execution process. We note that to some extent that earlier procedure is not completely abrogated but only modified by the new probate code. (G. S. 1939 Supp., 59-2238.)
The case of Page v. Van Tuyl, 150 Kan. 285, 92 P. 2d 110, is cited in support of appellant’s contention that the probate court and not the district court had jurisdiction in this matter of enforcing the stockholders’ liability. That decision was governed by the terms of a short-lived statute (G. S. 1937 Supp., 22-736), which authorized the probate court by an appropriate order to draw to itself a decedent’s real property, as well as his personal property, if the circumstances so required. There is no pretense that the probate court made any such order in the instant case. Page v. Van Tuyl is neither analogous nor helpful on any phase of the case at bar.
The contention that the district court had no jurisdiction cannot be sustained.
Appellant’s second contention is that the decedent in his lifetime had transferred the 47 shares to the trustees of the trust created in 1935. Some “make weight” argument is predicated on the terms of that trust and that the trustees owned the stock. Not so, however. The stock was pledged and assigned for a purpose which failed. Moreover, before an effective transfer of bank stock can be made, so far as the stockholder’s liability thereon is concerned, such stock must be transferred on the stock register kept by the bank. Notwithstanding their hypothecation and assignment to the trustees of the trust created in 1935, when the bank closed its doors for insolvency on August 20, 1939, the 47 shares still stood on the bank’s stock register in the name of Henry Fellhoelter, Sr., and that fact fixed irrevocably the liability of his estate. In Bank v. Strachan, 89 Kan. 577, 132 Pac. 200, the rule was thus stated:
“To effect an assignment and disposition of shares of capital stock in a bank so as to release the assignor from the superadded liability of shareholders fixed by law he must procure a transfer of the stock on the books of the bank in accordance with the provisions of the banking act.” (Syl. ¶ 1.)
See, also, State Bank v. Richardson, 117 Kan. 695, 232 Pac. 1070; and Farmers State Bank v. Coolbaugh, 141 Kan. 138, 39 P. 2d 915.
A final argument is predicated on the fact that the decedent had paid $750 in cash to the trustees in 1935, pursuant to an assessment made on the stockholders in an effort to rehabilitate the bank’s financial standing — which, according to appellant’s deduction, would at the worst leave no more than $3,950 unpaid. But that abortive effort to save the bank had no effect on the shareholders’ double liability when the bank insolvency later occurred. (Citizens Bank v. Needham, 120 Kan. 523, 244 Pac. 7; Bernard v. Emmett State Bank, 124 Kan. 233, 257 Pac. 949.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
The first of these appeals is from a judgment denying specific performance of an oral contract to devise and bequeath real and personal property. The second and third of these appeals are merely formal. Counsel for the parties have stipulated as to their eventual disposition and they will require no present attention.
In the principal appeal, No. 34,974, the record is interminably long. The abstract extends to 250 pages, the counter abstract to 133 pages; and the briefs and reply briefs to 261 and 288 pages, respectively. However, as space must be given to the trial court’s findings of fact, and they cover the essential features of the controversy comprehensively, our preliminary statement of the case will be held within narrow compass.
The late George Godfrey Moore, of Topeka, died testate on March 15, 1939. He had been successfully engaged in the business of life insurance for many years. About twenty years ago he founded the National Reserve Life Insurance Company and served as its president until his death. He was survived by his widow, Georgie Moore. He had no children. His nearest relatives were two sisters, several nieces and nephews, one of whom was Earle M. Moore, plaintiff herein.
In 1930 Earle M. Moore, then 33 years of age, was a resident of Los Angeles and for five years he had been engaged in the life insurance business as a representative of the Equitable Life Assurance Society of New York. His position with that company was a desirable and lucrative one and gave promise of progressive advantages if he should continue in its employment. .
About that time, George Godfrey Moore, then about 58 years old, began to evince some concern about who should follow him as president of the company he had founded. He conceived the idea that the plaintiff, who was his nephew and bore the same family name and who was already making headway as an insurance man, might be trained and fitted to be his successor as president of the National Reserve Life Insurance Company. In certain letters to the plaintiff written by George Godfrey Moore in 1930, set out in the trial court’s findings of fact (F. 6), George called Earle’s attention to the fact that he had no son to carry on after he should die or resign and that he would like to aid somebody of his own name and kindred to qualify for the presidency of his insurance company. This subject was discussed in correspondence between uncle and nephew, and led to the latter’s coming to Topeka, where they reached an agreement which, unfortunately, they did not reduce to writing — hence, this lawsuit.
Nevertheless, the evidence to prove that agreement, though emphatically disputed, was sufficient to prove its substance — which was that Earle Moore should sever his connection with the Equitable Company in California and become identified with the National Reserve Life Insurance Company and should for a time become its representative in Kansas City, Mo., and that he should later come to the Topeka headquarters of the company and familiarize himself with its executive and administrative affairs. In consideration for making this change in his mode of life and residence and for qualifying himself to succeed his uncle as president when the latter should die or resign, the uncle promised to bequeath to his nephew, plaintiff herein, his large holdings of stock in the insurance company and to devise to him also his fine home place — a mansion and its contents and 40 acres of land near Topeka — conditioned, however, that the use and enjoyment of the home place and the income of the stock should inure to Georgie Moore, wife of George Godfrey Moore, for the term of her natural life if she should survive her husband. Pursuant to this agreement Earle M. Moore left California, took up his abode in Kansas City, Mo., and opened an office in that city for the National Reserve Life Insurance Company. For his services to the company he received a salary and an office expense allowance. Plaintiff spent the years 1931 and 1932 in Kansas City, Mo. Then his uncle brought him to Topeka, caused him to be elected director and vice-president of the company and put him in charge of some of its important affairs.
In apparent compliance with the foregoing oral agreement of the parties, in the autumn of 1931 some months after plaintiff had entered the service of his uncle’s company in Kansas City, George Godfrey Moore made and executed his will. In it he bequeathed his insurance stock and devised his home place to plaintiff, subject to a life use and the enjoyment thereof to his wife. She signed her written consent thereto, and both the testator and wife initialed or signed each page of the will and it was formally attested by two witnesses. (Modified F. No. 9.)
The plaintiff continued in various capacities in the service of the National Reserve Life Insurance Company in'Topeka for the next three years; but about December 15, 1935, he resigned, and on January 1, 1936, he -severed his connection with it, and returned to California, where he opened an agency for the Minnesota Mutual Life Insurance Company, and has been so engaged since that time.
On November 22, 1938, nearly three years after Earle Moore severed his connection with his uncle’s company, the latter made a new will revoking “any and all former wills.” In it the testator made a lengthy testamentary disposition of his considerable fortune and estate to his widow and to relatives and many other beneficiaries; but it did not mention the plaintiff nor the oral agreement which the testator and plaintiff had made in 1930. This will was admitted to probate shortly after the testator’s death, and the named executrices, Iva G. Hayter and Mrs. Georgie Moore, qualified thereunder.
■ Some months later, on September 15, 1939, this action for specific performance was begun. Plaintiff joined ,as defendants the executrices and the legatees and beneficiaries under the testator’s will. His petition pleaded the pertinent facts and alleged that one of the defendants, Iva G. Hayter, had long been employed by George God-frey Moore as his stenographer and private secretary and that he had caused her to be elected as director of the insurance company and also as its secretary-treasurer; that she was a woman of intelligence and ability and that she had acquired great influence over George Godfrey Moore in both his business and private affairs; and after plaintiff was brought from Kansas City to Topeka to have charge of certain of the company’s affairs, she persistently interfered with his work, demoralized the agency force under his charge and destroyed his efficiency; that he frequently protested to George God-frey Moore about Miss Hayter’s interference with his work—
“But lie [the testator! was unwilling or unable to disturb his business relations with defendant Hayter and to prevent her interference with the activities of the plaintiff. The situation became so intolerable that finally plaintiff told his uncle that it was impossible for him to do his best work and it was not to the best interests of the company that he should continue in connection with the home office unless the situation could be changed. The uncle agreed that the situation was intolerable on account of interference with plaintiff by defendant Hayter as aforesaid, and it was then and there agreed between the plaintiff and his uncle that until it should become desirable or necessary for him to become executive head of said company, plaintiff might withdraw temporarily from the employment of the company and resume business on his own account elsewhere, but it was understood by and between them that this should not in any way violate or abrogate the original contract between the plaintiff and his uncle or that it should amount in any way to a waiver or relinquishment on the part of plaintiff of his rights which had accrued thereunder, which had been fully earned and vested in the plaintiff by reason of the fact that he had done and performed all that under said contract with his uncle was required of him to be done thereunder.
“Thereupon, the plaintiff, with his uncle’s consent, on or about the first day of January, 1936, returned to California where he opened an agency under another insurance company. This was with the full knowledge and consent of his uncle, who never then or thereafter advised the plaintiff by word or conduct in any way that he was dissatisfied with his departure or intimated that he would not carry out his part of the contract.”
Plaintiff concluded his petition with a prayer for specific performance of the contract of 1930 and for other equitable relief.
Defendants answered with a general denial, certain admissions, and specifically alleged that—
“If plaintiff ever had a contract with George Godfrey Moore, as alleged in his petition, which these defendants specifically deny, said contract was breached, abandoned and renounced by plaintiff, and by reason of such breach and abandonment plaintiff is not entitled to recover in this action.”
They further answered that plaintiff had been paid in full for all services rendered by him to the National Reserve Life Insurance Company, and that he had rendered no services to George Godfrey Moore and that the latter had received no consideration for the alleged' oral contract.
Defendants also pleaded the statute of frauds as against the enforcement of an oral contract to devise real estate, and that if any such contract existed as alleged it was breached on or before January 1, 1936, by George Godfrey Moore, and that an, action on the alleged contract accrued on or before that date and hence was barred by the statute of limitations when this action was begun, September 15, 1939.
On these issues the cause was tried by the court without a jury. The evidence took a wide range and went into many details, all of which this court has read assiduously. The trial court's findings of fact, somewhat abridged, were these:
“Findings of Fact
No. 1
“Plaintiff is a resident and citizen of Los Angeles, Cal., and was the nephew of George Godfrey Moore, now deceased. The defendants Iva G. Hayter and Georgie Moore are . . . the duly appointed, qualified and acting executrices and trustees of the estate of George Godfrey Moore, deceased, who, at the time of his death, was ... a resident of Shawnee county, Kansas . . .
No. %
“George Godfrey Moore died testate on March 15, 1939. At the time of his death he was 67 years of age. He had no children, but left surviving him his widow, Georgie Moore. His nearest relatives were two sisters, Hanna Moore Krammes and Mabel Moore Keefer; three nephews, . . . and two nieces, . . .
No. S
“At the time of his death, and from the date of its organization, George Godfrey Moore was president of the National Reserve Life Insurance Company, a Kansas corporation. In 1939 such company had a paid-up capital of 5550,000, divided into 55,000 shares of common stock, each having a par value of $10. The home office of the company is located in the city of Topeka, . . .
Modified No. 4
“That for several years prior to May 1, 1930, plaintiff, Earle Moore, resided in Los Angeles, 'Cal., with his wife, Merle Moore, and had been for about five years engaged in the life insurance business and was an assistant agency manager of the Equitable Life Assurance Society of the United States, and his average net receipts from first-year commissions, a salary and renewal commissions, from the Equitable Life Assurance Society for the years 1928, 1929 and 1930, were $5,092.65, in addition to which compensations he was entitled to receive certain renewal commissions from said Equitable Life Assurance Society . . . and . . . from the Peoria Life Insurance Company . . .
No. 5
“In 1930 George Godfrey Moore was about 58 years of age, and he and his wife resided in their home known- as Georgian Court, ... in Topeka and [which] consists of 40 acres of valuable land, with a dwelling house located thereon, which was well furnished and contained, among other things, a valuable library. He was deeply interested in the affairs of the National Reserve Life Insurance Company and was proud of his position as president of the company and the part he had taken in its organization and life, and was ambitious to be succeeded as president of the company by a relative of the same name who would have a knowledge of the insurance business, the intelligence and the force fitting him to be executive head of the company.
No. 6
“On May 1, 1930, George Godfrey Moore wrote to the plaintiff a letter in which, among other things, he said:
“ !. . . I have thought several times of whether or not it wouldn’t be to your best interests to be associated with the National Reserve Life Insurance Company. You know some time or other it is going to be necessary for me to get out of the business. However, I hope it will be a long time and should anything happen to me the probabilities are that you will be remembered in a very substantial way . . .’
“'. . . What would you think of coming to Topeka with the idea of working into an executive position ... If you could measure up to the requirements in a reasonable time you could have the opportunity of becoming the head of the company.’
“On May 14, 1930, George Godfrey Moore wrote to the plaintiff a letter, in which, among other things, he stated:
“ ‘Unfortunately for my estate I have no children and consequently I will have no one to carry on for me. So I naturally feel if I can be the means of aiding anyone that is any relation to me and who deserves it, I should do so. That is the reason I wrote you along the lines that I did.’
No. 7
“In September, 1930, the plaintiff, Earle Moore, accompanied by his wife Merle Moore, visited George Godfrey Moore in Topeka, . . . During this time the project of the National Reserve Life Insurance Company being admitted to do business in the state of California was discussed between plaintiff and George Godfrey Moore. During this visit Earle Moore agreed to open and manage an agency office for the insurance company in California whenever the company was admitted to do business in that state, for which George God-frey Moore agreed that the National Reserve Life Insurance Company would pay him a salary of $6,000 per year and other compensation. At the same time it was agreed between the two that after plaintiff had so operated the company agency in California for several years he was to come to Topeka and work for the life insurance company in the home office in different managerial and executive positions, to the end that such experience and position would fit him to be president of the insurance company and to succeed George Godfrey Moore as head of the company. At the same time George Godfrey Moore agreed to leave to plaintiff, by will, the stock he owned in the National Reserve Life Insurance Company at his death, subject to the right of Georgie Moore to receive the income frorfl such stock during her life; and also to will to plaintiff a 40-acre tract of land known as Georgian Court, with the residence thereon and its contents, subject to a life estate in Georgie Moore. It was intended by this agreement that the association of plaintiff with the National Reserve Life Insurance Company was to be permanent and to continue until the death of George Godfrey Moore or until his retirement from the presidency of the company.
No. 8
“Thereafter, in the fall of 1930, . . . because said company was not admitted to do business in California, said parties in December, 1930, modified said agreement by agreeing that the plaintiff, Earle Moore, should open and conduct an agency of the company in Kansas City, Mo., instead of California, and should receive a salary for his services of $4,200 per year and commissions and renewals as set out in a written contract between plaintiff and the National Reserve Life Insurance Company dated February 9, 1931, . . . and also additional compensation of $100 per month to be paid by George Godfrey Moore.
Modified No. 9
“In the fall of 1931, pursuant to the agreement of September, 1930, between plaintiff and George Godfrey Moore, a will was executed by George Godfrey Moore, wherein he devised to the plaintiff his stock in the National Reserve Life Insurance Company and the 40-acre home tract, referred to as Georgian Court, together with its contents, at the death of Georgie Moore, and Mrs. Georgie Moore was to have the income from the stock during her life. Such will was signed by George Godfrey Moore, and his wife Georgie Moore signed a written consent thereto; and each page of said will was either initialed or signed by both George Godfrey Moore and his wife, Georgie Moore, and such will was attested by two witnesses.
No. 10
“In February, 1931, plaintiff entered upon his services with the National Reserve Life Insurance Company under the written contract of February 9, 1931, established a branch office for that company in Kansas City, Mo., and remained in charge thereof until November, 1932, when the office was closed. During this period he was elected a director of the company.
No. 11
“In November, 1932, plaintiff came to the home office of the Insurance Company in Topeka pursuant to the original plan contemplated by the parties under their agreement and was appointed agency manager of the company at its home office. He remained in the Topeka office until approximately January 1, 1936. During this period of time he was elected vice-president and acted as superintendent of agents, having charge of all the company’s agents in the various states wherein the company operated, which offices, together with that of director of the company, he held until January 1, 1936.
No. 12
“During the five years that the plaintiff remained in the employ of the National Reserve Life Insurance Company he familiarized himself with the affairs of said company and became acquainted with all departments of said company’s business. He was a member of and served on the' underwriting committee and was frequently called into conferences concerning the investments of the company; and was appointed to and did manage and have under his control the company’s largest investment, the National Reserve Building, located in Topeka, Kan., and learned all the details of the company’s business.
No. IS
“The defendant Iva G. Hayter was the secretary-treasurer of the National Reserve Life Insurance Company during the period of plaintiff’s employment. While plaintiff was at the home office Iva G. Hayter interfered, by many acts, in plaintiff’s discharge of his duties. Such interference consisted in opening and answering the mail from agents of the company, much of which was addressed to plaintiff and was properly within plaintiff’s department and in his line of work; in countermanding the plaintiff’s orders with reference to such agents’ itinerary and work; in attempting to direct the agents as to their work; in taking the agents from tasks which plaintiff had assigned to them and having such agents do other work for her; in taking the building custodian and engineer and other building employees from the National Reserve Building and assigning them other work to do for her, which employees were under the charge and direction of the plaintiff; in criticizing the plaintiff to George Godfrey Moore and to employees and subordinates. Plaintiff considered that such interference greatly reduced his efficiency, to the detriment of the interests of the company. Plaintiff on several occasions complained to his uncle George Godfrey Moore of such interference and that such conditions were growing worse, caused confusion in his department and took a great deal of his time in straightening out matters; and George Godfrey Moore assured him that it would be corrected. George Godfrey Moore stated that Miss Hayter had nothing to do with the agency department and promised to see that the interference was discontinued; but for some reason not disclosed by the evidence he did not correct the same.
No. 14
“About the middle of December, 1935, the plaintiff resigned; and approximately on January 1, 1936, he left the employ of the company and returned to the state of California. The cause of his leaving such service was that he and his wife would rather live in California than in Kansas; that he was dissatisfied with part of the management of the company; that he was unable to get along with Iva G. Hayter, and resented the part she took in the affairs of the company. When he left Topeka he had no intention of ever returning or ever again entering the service of the company as an executive or otherwise, and this intention continued until the death of George Godfrey Moore. On arriving in California, plaintiff associated himself with the Minnesota Mutual Life Insurance Company as an agency manager, in which position he still continues.
No. 15
“The relations between George Godfrey Moore and the plaintiff were always pleasant. George Godfrey Moore regarded plaintiff as a man of unusual ability in the insurance field. This relationship existed before and after Earle Moore returned to California, and after Earle Moore’s return to California in 1936, George Godfrey Moore stated to various persons that he expected Earle Moore to return to the company and become president thereof.
No. 16
“On or about November 22, 1938, George Godfrey Moore executed his last will and testament, wherein no devise whatsoever was made to the plaintiff, . . .
No. 17
“At the time of the death of George Godfrey Moore he was the owner of 17,657% shares of the common stock of the National Reserve Life Insurance Company, . . . The legal title to Georgian Court at all times herein involved stood in the name of George Godfrey Moore, . . .
No. 18
“The last will and testament of George Godfrey Moore was probated on March 30, 1939. . . .
No. 19
“The value of the stock in the National Reserve Life Insurance Company owned by George Godfrey Moore at his death and the 40-acre tract known as Georgian Court is less than one-half of the value of the net estate of George Godfrey Moore, deceased.
No. 22
“By reason of the contract of September, 1930, plaintiff never performed any service for George Godfrey Moore personally.
No. 28
“The only consideration received by George Godfrey Moore personally from the plaintiff by reason of the contract of September, 1930, was whatever satisfaction he received from the fact that plaintiff would equip himself to succeed him as president of the National Reserve Life Insurance Company, and was willing to be such president.
No. 24
“Any damage incurred by plaintiff by reason of leaving the service of the Equitable Life Assurance Society and entering the service and working for the National Reserve Life Insurance Company from February, 1931, to January, 1936, could be ascertained and compensated for in money.
No. 25
“There is no evidence that the will of George Godfrey Moore, executed in the fall of 1931, was ever revoked until it was revoked by the will executed by him in November, 1938.
Modified No. 26
“During the years 1931, 1932, 1933, 1934 and 1935 plaintiff received for his services from the National Reserve Life Insurance Company the sum of $25,952.45, and expended for the benefit of said company $5,284.33, leaving his net earnings for the five years’ service $20,668.12, or a yearly net earning of $4,133.62. During this period he received renewal commissions from the Equitable Life Assurance Society in the sum of $5,636.26, or an average of $1,127.25 per year.
Modified No. 27
“After leaving Topeka in Januaiy, 1936, plaintiff associated himself with the Minnesota Mutual Life Insurance Company, and in that year he received from that company $1,527.59 net, and from the Equitable Life Assurance Society renewal commissions of $615.89. In 1937 he received from the Minnesota Mutual Life Insurance Company $3,876.52 net, and also received renewals from the Equitable Life Assurance Society in the sum of $527.05. In 1938, he received from the Minnesota Mutual $4,734.56 net, and received from the Equitable renewal commissions in the sum of $321.20.”
On the foregoing findings of fact the trial court reached the following conclusions of law:
No. 1
“From the evidence adduced in the case on the question of any amount of loss or damage suffered by plaintiff by reason of his leaving the service of the Equitable Life Assurance Society and entering the service of and working for the National Reserve Life Insurance Company from February, 1931, to January, 1936, the court cannot find that it would be equitable to specifically enforce the performance of the contract of September, 1930, nor can the court find that any satisfaction George Godfrey Moore enjoyed from the fact that plaintiff entered the service of the National Reserve Life Insurance Company and from his employment in the home office of the company fitting himself to be president of the company would make it equitable to specifically enforce such contract.
No. 2
“The conduct of plaintiff in leaving the service of the National Reserve Life Insurance Company, in January, 1936, with the intention of never again entering the employ of the company constituted an abandonment of the contract of September, 1930, on his part.
No. J
“Judgment should be entered for the defendants for the costs of the case.”
Judgment was rendered accordingly and the plaintiff appeals, complaining chiefly of parts of findings Nos. 7 and 14; objecting to findings Nos. 22, 23 and 24; and assigning error on the trial court’s conclusions of law Nos. 1, 2 and 4. Some other errors are assigned formally, but those mentioned will necessarily determine the result.
It will be noted that the trial court found that the oral contract of 1930 between uncle and nephew had in fact been made as alleged. In their counter abstract and in their briefs counsel for defendants belittle and minimize the evidence to establish that contract, and quote at length the testimony they offered to disprove its existence; but they did not except to the findings of fact, and they have brought no cross-appeal.
And first as to plaintiff’s exception to part of finding No. 7: That finding as a whole is the one in which the trial court found that the oral contract of 1930 had been made as alleged in plaintiff’s petition and as established by his evidence. The concluding lines of the finding to which the plaintiff objects read:
“It was intended by this agreement that the association of plaintiff with the National Reserve Life Insurance Company was to be permanent and to continue until the death of George Godfrey Moore or until his retirement from the presidency of the company.”
Counsel for plaintiff contend that the record contains “absolutely no evidence” to support these concluding lines of finding No. 7 and that they must be interpreted as a conclusion of law which is open to appellate review.
Of some probative force on this point, it must be noted that when the uncle and nephew began their negotiations in 1930, both intended that plaintiff should operate an agency for the company in California "for several years,” and then come to Topeka to serve in different managerial and executive positions. That intention had to be modified for reasons of no present importance, and the agreement became one which contemplated that plaintiff's “several years" as agency manager should be served in Kansas City instead of California. It was rather clear that when the parties opened the negotiations which culminated in the contract sued on, the elder man did not expect “to die in the harness”; he contemplated retirement from the presidency. A witness for the plaintiff, Frank L. Campbell, who was for many years clerk of the United States District Court in Topeka, testified:
"I live in Los Angeles; formerly lived in Topelca. ... I knew Mr. Moore very well from 1906 to the time of his death. ... We entertained each other in our homes. Our relations were intimate. My wife and I operated the Shop of India, which was located on the first floor of the National Reserve Building. Along about 1930 I had some conversations with George about Earle. ... I asked him how he was feeling — he hadn’t been feeling very well — and he said, ‘Oh, kind of rotten.’ I said, ‘Well, George, you ought to take care of yourself, take things a little bit easier than you have.’ He said, ‘I am going to get things arranged some of these days so I can take it easier. I’ll tell you something, Frank, I am figuring on. You know my nephew Earle. ... I think the world of him, and Georgie does too, both Earle and his wife, and I have got this in mind. Earle is an insurance man, an awful good insurance man, a go-getter, and I am going to have him come back and be with me for a while and learn the business of the company, get acquainted with the personnel of the office, with the men outside, and meet our policyholders, and in general make himself acquainted with the business, because he is eventually — I am going to leave my interest in the life insurance company to him. You know, I am kind of jealous about the life insurance company. I organized it and built it up, and I think I have got as good a company as there is in life insurance, and I would like to see it kept in the Moore name, want it kept in the Moore name if possible. Earle is just the fellow that I think will fit in, and I am going to have him come back and come in and stay and train him.’ ”
On May 1, 1930, George Godfrey Moore wrote to the plaintiff:
“You know some time or other it is going to be necessary for me to get out of the business. ... Now what I have.been, wondering is if it wouldn’t be for your best interest to be associated with the N. R. L. I. Company. What would you think about coming to Topeka with the idea of working into an executive position. I mean by that to learn everything about the company, know how the business is handled on the inside and the trials and tribulations the home office man has. If you could measure up to the requirements in a reasonable time you could have the opportunity of becoming head of the company.”
On December 1,1930, plaintiff wrote to his uncle:
“In considering a change either here or to Kansas City I would like very much to make the decision and get settled as soon after January 1st as it is possible to do so.”
On December 8, the uncle wrote to the nephew:
“I believe you will not have much trouble in getting started. Kansas City ... is not a bad place to live, for after all, the next ten years or fifteen are going to be put forth in the way of making good then later on comes your play days, etc. ... If you accept this office [offer], wish you would send me your photograph by air mail.”
On December 12, the uncle again wrote:
“Would like very much to have you associated with us, but I cannot make the decision for you. It looks as though you are nicely located and it may be best for you to stay there.”
In the same letter the uncle urged the financial inducements in salary and commissions which in behalf of the company he was offering to plaintiff, and added—
“You will have all the territory you can possibly handle in Kansas City, Kan., Kansas City, Mo., St. Joseph, and Independence, and if you can develop this in several years, ... I don’t know of any better opportunity for you if you make up your mind you want to leave California. Might say, there is nobody else in the world to whom I would offer such a proposition. . . . Another advantage, Earle, you would have here is being close to the home office and being familiar with everything that is going on.”
When the uncle wrote these letters he was 58 years of age; his life expectancy was 14.74 years; he actually had less than 9 years to live. In the circumstances it does not seem reasonable that plaintiff’s connection with his uncle’s company was only to endure for such length of time as would enable him to qualify himself for the presidency of the company and that he would then be privileged to sever his connection with it until his uncle’s death or resignation. Indeed, one allegation in plaintiff’s petition virtually compels a contrary conclusion, where it is alleged that because of Miss Hayter’s interference with plaintiff’s duties which his uncle .did not or could not terminate or prevent—
“It was then, and there agreed between the plaintiff and his uncle that until it should become desirable or necessary for him to become executive head of said company, plaintiff might withdraw temporarily from the employment of the company and resume business on his own account elsewhere, but it was understood by and between them that this should not in any way violate or abrogate the original contract between the plaintiff and his uncle.”
If it had not been intended in the oral argeement of uncle and nephew of 1930 that plaintiff’s association with the company was to be permanent there would have been no occasion for them to make that alleged second oral agreement. Moreover, the trial court did not find that any such second agreement had been made.
In view of the correspondence and all the circumstances, this court is unable to say that the concluding' sentence of finding No. 7, to which plaintiff objects, was not supported by evidence sufficient to sustain it.
Another error pressed on our attention is directed against a portion of finding No. 14, which reads:
“When he [plaintiff] left Topeka, he had no intention of ever returning or ever again entering the service of the company as an executive or otherwise, and this intention continued until the death of George Godfrey Moore.”
It is contended that the excerpt just quoted was- “not supported by substantial evidence and is immaterial to the issues.”
Noticing the second point of objection first, the answer of defendants had specifically pleaded- — ■
“For their second and further defense, these defendants allege that if plaintiff ever had a contract with George Godfrey Mioore, as alleged in his petition, which these defendants specifically deny, said contract was breached, abandoned and renounced by plaintiff, and by reason of such breach and abandonment plaintiff is not entitled to recover in this action.”
Plaintiff’s reply joined issue on this plea, and its vital importance in this action is clearly evidenced by the range of testimony which centered about it at the trial below. Certainly it was material to the issues. Cases where the abandonment of a contract right has been an issue in actions for breach of contract or for specific performance are common. (Seligman v. Rogers, 113 Mo. 642, 21 S. W. 94; Smedley v. Walden, 246 Mass. 393, 400, 141 N. E. 281; Robinett v. Hamby, 132 N. C. 353, 43 S. E. 907; Public Utilities Co. v. Bessemer City, 173 N. C. 482, 485, 92 S. E. 331; Gessler v. Erwin Co., 182 Wis. 315, 193 N. W. 363; Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19, 31, 45 L. Ed. 60; 17 C. J. S. 899; 12 Am. Jur. 1018, § 438; 25 R. C. L. 207.) In Lohn v. Fletcher Oil Co., Inc., 38 Cal. App. (2d) 26, 100 P. 2d 505, the action was to obtain a declaration of the rights, duties and obligations of parties to an option to purchase oil. One of the issues raised was whether the option had been abandoned. The first section of the syllabus reads:
“Abandonment of a contract is a matter of intent and is to be ascertained from the facts and circumstances surrounding the transaction out of which the abandonment is claimed to have resulted, and it may be implied from the acts of the parties.”
Did the evidence support the defendants’ plea of abandonment and the trial court’s finding of fact on that issue?
With a candor which we feel bound to commend, counsel for appellant say:
“We admit that there was evidence upon which the court could base his finding that when Earle left Topeka, he had no intention of ever returning and that this intention continued until the death of George Moore.”
Part of that evidence was as follows: About six weeks after plaintiff severed his connection with the company and returned to California, he wrote to his uncle — •
“For some reason or other I did not fit into the picture as harmoniously as was necessary for my complete happiness, and yours as well, and I do sincerely hope that I will always be able to retain your past extreme friendly interest in my welfare because regardless of what may have been said or left unsaid, I always have had a genuine respect for you. ... It seems during my last few days in Topeka that there was some little tension and I did not have the opportunity of conveying to you personally the above sentiment.”
Dr. H. B. Talbot, a Topeka physician and medical director for the company, testified that in the autumn of 1935 plaintiff told him that he wasn’t satisfied with the way things were going. This testimony continues: -
“He said things were just becoming impossible, so he couldn’t stay and not only were things not going along like he wanted them to go but he didn’t like to live in Kansas — he wasn’t happy here, he didn’t like this climate, he didn’t like the people here. . . . Along in December, he started to talk about leaving the company again and I tried my best to get him to stay. I said, ‘Earle, I think you are making the mistake of your life. We need you here. I would like to have you stay because I want you to stay and I think Mr. Moore wants you to stay.’ And he said, ‘Well, I can’t get along with Mr. Moore, I can’t get along with Miss Hayter.’ . . . ‘Besides,’ he said, T don’t like the state of Kansas; I don’t like the weather. I wouldn’t live here if my uncle would give me this company and the building and throw in the state of Kansas.’ ”
Within six months after leaving the company plaintiff canceled a policy of insurance he held in his uncle’s company. The correspondence pertaining to it was conducted with his uncle personally.
An aunt of plaintiff, sister of George Godfrey Moore, testified that she had a conversation with plaintiff in which she asked him why he had left the National Reserve company, and that he answered her:
“Well, I knew I didn’t see any future in it for me.”
Her testimony continues:
“I said, ‘Earle, I think you made a mistake in leaving Uncle George,’ because I really had Earle’s interests at heart. He said, ‘Oh, no, you don’t understand the life insurance game.’ He said, ‘Back here I can build my own future, and there,’ he says, 'there was not a chance,’ because, he said, that he couldn’t do things the way he wanted to do them. He had new ideas and George still thought he was president of the company and . . . that they conflicted— they didn’t think alike. ... I said, ‘But, Earle, I still think you should have stayed.’ I told him I thought his future would have been brighter had he stayed with the National Reserve and he said, no, it wouldn’t because ‘now I am building a future for myself, and besides Merle and I like California to live. We intend to establish a home here and this is where we want to end our days — in California.’ ”
The same witness testified to another conversation she had with plaintiff after his uncle’s death:
“I said to Earle Moore there, ‘Earle, don’t you wish you had stayed with Uncle George?’ He said, ‘No, I don’t, Hannah. There was no future for me, and right now I wouldn’t trade places with a United States senator.’ ”
Another witness, Doctor Kimbrough, deposed that he and his wife attended the funeral of George Godfrey Moore, and that he had a conversation with plaintiff about that time. He testified:
“I said, ‘Earle, it would be a fine thing now, if you could step in here and help to handle the affairs of this insurance company.’ His reply was that he had no interest in the National Reserve Life Insurance Company; he didn’t want to have anything to do with it; he had his own business in California, he was making good and was happy and expected to spend the rest of his life in California. . . . Earle and his wife were preparing to leave Topeka and I asked him if he was not going to wait until George Moore’s will was read. His reply was that he didn’t care anything about the will, he didn’t expect to benefit from it in any way whatsoever and it was not necessary for him to stay to hear it. ... I was present at another conversation in Mr. Stone’s office, between Earle Moore and Mr. Stone ... in reference to the carrying on of the National Reserve Life Insurance Company’s business. . . . Mr. Stone, in this conversation, remarked to Earle that he wished Earle could be there and help him to pull the business up and keep it on its feet. Earle replied, T am not interested in the National Reserve Life Insurance Company beyond the making good of some insurance which I have with the company.’ He said, 'I have no interest except my own policies and Aunt Georgie’s interest in the company, and I would not take it to run it for anything. I want nothing to do with it, I have my own business in California and am making good and am happy, and expect to stay with the business I am building.’ He repeated that more than once, vigorously.”
Soon after plaintiff’s return to California following his uncle’s funeral, he wrote to another uncle by marriage:
“You don’t know how glad I am that I left Topeka three years ago and am not there now. . . . It is immaterial to me as I knew quite well three years ago I was turning my back on anything that might have come to me . . . I cannot have enough faith or confidence in the company to leave any of my life insurance with them, because I want to know beyond any question of doubt that the proceeds of my life insurance will be paid to Merle and others, when I die. I don’t want to have a feeling of 'lack of confidence’ in the company in which I own life insurance.”
The foregoing excerpts from the testimony and depositions make it clear, we think, that the criticized portion of the trial court’s finding No. 14 was sufficiently sustained by the evidence. There was testimony which tended to show that George Godfrey Moore was not inclined to accept the defeat of his cherished plans to have his nephew, plaintiff herein, succeed him as president, notwithstanding the latter had severed his connection with the company. There was evidence tending to show that the elder man was deeply hurt at his nephew’s departure, and that he repeatedly said to various witnesses that he could and would bring Earle back to the company. There was testimony that as late as June, 1938, and even as late as September, 1938, he still cherished that expectation, and that' his will of 1931 made in conformity with his agreement with his nephew in 1930 still stood. The trial court may not have believed that testimony, or at least did not attach controlling importance to it, for it made no specific finding on the point. It was not until November 22, 1938, when George Godfrey Moore made his last will and testament, only about four months before his death, that it can be clearly inferred that the uncle had eventually given up his hope that his nephew might succeed him as head of the company. The trial court did find (F. 15) that friendly relations continued after plaintiff left the company, and that the uncle often said he “expected Earle Moore to return to the company and become president thereof.” But there was no evidence that Earle “expected to return,” and there was a plethora of evidence that he did not intend to return. Indeed, it would seem that plaintiff’s own testimony put such an idea beyond controversy. The contract of 1930 between uncle and nephew had never been reduced to writing, and the latter had never heard of the rule of law that where a contract has been fully performed on one side it may be enforced in equity notwithstanding at its inception it was of the character which had to be in writing in order to bind the parties. Having been of the opinion that his oral contract of 1930 was unenforceable in 1935 or 1936, of course plaintiff had no intention to return to the service of the company. Never from the day he resigned from the service of the company in December, 1935, until he chanced to make contact with a lawyer several months after his uncle’s death and the probate of his will, did plaintiff say or do anything to indicate an intention or disposition to return to the service of the National Reserve Life Insurance Company. The trial court was clearly within the limits of its discretion when it declined to attach any significance to Earle Moore’s evidence that if he had known the law of his case he would not have made so many and such emphatic statements to the effect that after he left the company he wanted nothing more to do with it, that he knew he was turning his back on his Kansas prospects, and that he would not stay if his uncle would give him the company and the state of Kansas to boot! Plaintiff’s zealous and skillful counsel argue that these ill-advised remarks of their client merely indicate his humiliation at the way he had been “boosted out of the company,” and because he “was not mentioned in the will” of his uncle. Be that as it may, this court holds that it can find no justifiable ground to disturb the trial court’s finding No. 14, nor the court’s conclusion of law No. 2, which is predicated thereon.
In view of the foregoing conclusions we have been constrained to reach in respect to the errors assigned on the criticized portions of findings Nos. 7 and 14, and the trial court’s conclusion No. 2, it would serve no purpose to extend this already too lengthy opinion to discuss appellant’s objections to findings Nos. 22, 23 and 24, nor to adjudicate the debate between counsel touching the correctness of the trial court’s conclusion No. 1. However these might be decided, they could not affect the controlling significance attaching to findings and conclusion we have reviewed above.
No material error in the record of sufficient gravity to disturb the judgment has been made to appear, and that judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by the husband of a member of The Security Benefit Association and former patient at The Security Benefit Home and Hospital Association, to recover moneys which it was alleged he was required to expend by reason of wrongful diagnosis and treatment of his wife by the corporate defendants and their agent, physician and surgeon, Dr. A. C. Schoch. Separate general demurrers of the corporate defendants and the defendant doctor to the petition of plaintiff were overruled, and from that ruling defendants appeal.
The petition contained in substance the following averments: Plaintiff’s wife had for sometime been a member of The Security Benefit Association, a fraternal benefit or insurance society incorporated under the laws of this state, with its principal office and hospital located at Topeka. The Security Benefit Home and Hospital Association was a corporate affiliate of the defendant insurance association and functioned and served as an agent and instrumentality of the insurance association. The two corporations functioned and operated as a unit and as an integral part of the same common plan and purpose. The defendant, Dr. A. C. Schoch, was a resident physician and surgeon of the hospital association, a salaried member of the hospital staff, and not an independent practitioner.
As a member of the insurance association, plaintiff’s wife was entitled to the rights and privileges of diagnosis and treatment in the hospital association. On April 4, 1938, his wife entered the hospital conducted by the corporate defendants and placed herself under the care of the individual defendant, Dr. A. C. Schoch, for treatment of a small lump or growth in her left breast, and particularly for a diagnosis of the same in order to determine whether it was cancerous. The doctor made an incision into the left breast on April 5, at a place near the lump, although not in or upon it, and took from it a piece of tissue. The patient remained in the hospital until April 10, when she returned to her home at Willard, Mo.
The petition further alleged:
III. “On the 4th day of April, 1938, the wife of the plaintiff entered as a patient the hospital conducted by the two corporate defendants, and placed herself under the care of the defendant, Dr. A. C. Schoch, for treatment of a small lump or growth in her left breast and particularly for a diagnosis of the same to determine if it were cancerous. The defendant, Dr. A. C. Schoch, made an incision into the left breast of the wife of the plaintiff on the 5th day of April at a place near the said lump or growth, although not in or upon it, and took therefrom a piece of tissue. The wife of the plaintiff at the time called to Doctor Schoch’s attention the fact that the tissue was not-taken at the place of the growth and was not a part of the growth. Thereafter, the wife of the plaintiff remained at the hospital until April 10, 1938, when her wound was sufficiently healed for her to go to her home at Willard, Mo. In the meantime, both she and the plaintiff had anxiously inquired for the diagnosis or the nature of the tissue removed but had received no information. On April 20, 1938, the wife of the plaintiff received a letter from the defendants, dated April 16, 1938, and signed by Doctor Schoch, stating among other things 'my microscope tells me the breast should be removed' but not stating whether the tissue removed was found to be cancerous. Thereupon, the wife of the plaintiff made telegraphic inquiry and was advised that the tissue was cancerous.
IV. “The wife of the plaintiff then went immediately to the Mayo Clinic at Rochester, Minn., informed the head of the Mayo Clinic Department of Surgery of the history of the case, including the diagnosis made by the defendants, and, on the strength of the said diagnosis, was immediately operated upon by the said surgeon. Her left breast was entirely removed, as well as the lymph glands under her left arm, without further diagnosis. The growth was not a malignant one, the wife of the plaintiff had no cancer, and the diagnosis of the defendant was an incorrect one.”
VI. “The city of Topeka, Kan., has a population of approximately 70,-000, is a thriving, modern city and a medical center where the standards of hospitals and practice of medicine are high and in accordance with the most advanced standards of both, and in which are located several large hospitals, numerous capable physicians, surgeons, pathologists, and diagnosticians whose skill and standards of practice of hospitalization and medicine are approved by the medical profession in the advanced centers of medical science. Under modern standards of medical practice generally approved by the medical profession in and around Topeka and other advanced medical centers, the proper course of treatment for the defendants to have given to the wife of the plaintiff would have been to remove from her breast the entire lump or growth, to have an immediate examination of the said tissue by an expert pathologist and a report upon the same within less than an hour, to permit the wound to heal if noncancerous, and to perform immediately the so-called radical operation and remove the entire left breast and lymph glands under the arm on the left side if found to be cancerous.
VII. “The defendant Schoch did not exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by members of his profession in good standing, did not use ordinary and reasonable care and diligence in his treatment of the case, and did not follow the approved procedure and proper course of treatment generally recognized in and around Topeka in his medical and surgical attentions to the wife of the plaintiff.
“The plaintiff specifically charges that the defendants and each of them unless otherwise noted were negligent in the following particulars:
“(1) The failure of the defendants to employ a trained and skilled pathologist to examine and report upon the tissue taken.
“(2) The failure of the defendants to make any report at all for a period of two weeks upon the tissue taken.
“(3) The failure of the defendants to remove the questionable growth from the breast of the wife of the plaintiff.
“(4) The failure of the defendants to maintain in good repair the apparatus necessary for a diagnosis of this questionable growth.
“(5) The incorrect diagnosis of the tissue by the defendants as cancerous.
“(6) The adoption by the defendants of a method of diagnosis not generally approved by the medical profession in and around Topeka.
“(7) The adoption by the defendants of a method of treatment not generally approved by the medical profession in and around Topeka, and failure of the defendants to adopt the approved procedure and methods in such cases, to wit: by removing from the breast of the wife of the plaintiff the entire lump or growth; having an immediate examination and report within a few minutes, or an hour at the latest, by an expert pathologist of the tissue removed; a correct diagnosis upon examination of such tissue, and in the event that the growth was found to be malignant, the immediate removal of the entire left breast and lymph glands under the left arm on account of the great speed with which cancer cells spread through the lymphatic system when there has been an incision into cancerous matter; or in the event that the diagnosis shows that the growth was noncancerous, permitting the wound to heal without further operation.
“(8) The failure of the defendants to maintain their hospital upon such a basis as to be approved by the American College of Surgeons; the maintenance of the hospital in such a manner as to cause its removal from the registry of the American Medical Association in 1938, and its ineligibility for registration by the said association.
“(9) The employment and retention by the corporate defendants of the defendant, Dr. A. C. Schoch, as a pathologist when he was not competent to be one, did not possess and exercise the skill and training ordinarily possessed and exercised by pathologists in good standing; the employment and retention by the corporate defendants of the defendant, Doctor Schoch to diagnose and treat growths believed to be cancerous when he either did not know the methods approved generally by the medical profession in and around the' city of Topeka and in similar medical and surgical centers for diagnosis and treatment of growths thought to be cancerous, or if he did know the methods generally approved by his profession, did not use ordinary and reasonable care and diligence and his best judgment in the application of his skill to the case; and the failure of the corporate defendants to use reasonable care in the selection and employment and retention of the defendant, Doctor Schoch, as a medical and surgical employee of the hospital. The corporate defendants by the exercise of reasonable care could have ascertained that the defendant Doctor Schoch was not competent to act as a pathologist to diagnose and treat such cases as that of the wife of the plaintiff herein, and to employ the medical methods generally recognized as being approved by the medical profession in and around Topeka and other medical and surgical centers of high standing.
VIII. “The damages suffered by the wife of the plaintiff are the direct and proximate result of the negligence of the defendants heretofore specified, for the reason that such negligence compelled an immediate operation by the Mayo Clinic without waiting to make a diagnosis of their own, because of the great danger resulting from the extremely rapid spread of cancerous cells through the lymphatic system upon the incision into and removal of malignant growth. The operation at the Mayo Clinic more than two weeks after the incision had been made by the defendants, was deemed necessary at the earliest possible minute on account of the diagnosis by the defendants (later found to be incorrect) of the growth as cancerous and the extreme danger of acceleration of the spread of cancer. The tissue removed by the defendants from the left breast of the wife of the plaintiff was not cancerous and no cancer has ever been shown to have existed or to have developed in the wife of the plaintiff.
IX. “As the direct and proximate result of the negligence of the defendants heretofore set forth, the plaintiff has been obliged to lose considerable time from his business and occupation, and has been obliged to expend large sums of money for medicines, nurses, doctors, hospital fees, physiotherapy treatments, X-ray and infra-red treatments and other items incident thereto for his wife, and furthermore, to expend considerable sums of money in traveling expenses, both for himself and for his wife, in going to and from both Topeka and Mayo's Clinic in Rochester, Minn., an itemized statement of which will be submitted to the defendants upon request.”
In addition to the injuries to the person of the plaintiff, which injuries we need not note in this action, the petition set forth the items of damage which plaintiff claimed. They were such items as money expended for medicines, nurses, doctors, hospital fees, treatments, traveling expenses incurred by him and his wife in going to and from Topeka and Mayo’s clinic at Rochester, Minn., and loss of time from his own business and occupation, in the total sum of 12,250.
The petition was in nowise motioned by defendants. Since the demurrers were all general in character, we need not determine whether specific items of damage are recoverable. If any item of damage is recoverable the demurrers were, of course, properly overruled. In passing we may, however, note that expenses incurred prior to diagnosis or treatment in the hospital at Topeka, could not possibly be the proximate result of diagnosis or treatment.
While defendants make several contentions they argree the principal question presented is whether the alleged wrongful diagnosis was the proximate cause of the expenses incurred. Both plaintiff and defendant concede the issue is one of first impression in this state and that their research has disclosed no case squarely in point from any other jurisdiction.
It is well established that generally a physician or surgeon is not liable for an honest error or mistake in diagnosis without treatment. (Taylor v. Shuffield, [Tex. Civ. App.] 52 S. W. 2d 788, 793; Dishman v. Northern Pac. Ben. Ass’n, 96 Wash. 182, 201, 164 Pac. 943; 48 C. J., §113, pp. 1126, 1127.)
Does the petition disclose any treatment of the patient? All aver-ments touching that subject are found in paragraph III. The petition pleads no treatment unless procedure incident to the making of the diagnosis alone constitutes treatment. We are advised of no authorities which hold that such practice constitutes treatment in the proper sense of the term. The services of the defendant doctor ended with diagnosis. Whatever plaintiff’s wife did thereafter constituted a voluntary act of her own and must be held to have been performed solely on her own initiative. We think the diagnosis was not the proximate cause of the damages sought to be recovered.
Defendant further contends if anyone is liable in the instant action, it is the Mayo clinic, for negligence in operating without first making its own independent diagnosis. Defendants also claim paragraph VII (7) of the petition contains facts which disclose the Mayo clinic was negligent in failing to make its own diagnosis prior to operation. With the latter contention we cannot agree. At least one of the difficulties with that argument is the petition does not disclose that facts stated in paragraph VII (7) occurred prior to the date of the operation at the Mayo clinic.
In any event, defendants urge the proximate cause of the damage was the intervention of an independent and intelligent third party, namely, Mayo’s clinic, which performed the operation. For the purpose of this lawsuit it will suffice to say that in our opinion the wrongful diagnosis was not the proximate cause of the damage claimed. Since under the averments of the petition, the defendant doctor was not liable, it of course follows the defendant corporations are not liable. The action is reversed and the cause remanded with directions to sustain the demurrers. | [
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The opinion of the court was delivered by
Thiele, J.:
Defendant was convicted of the crime of statutory rape, and appeals, the only question presented being whether as the result of his preliminary hearing he was properly bound over for trial in the district court.
On December 13, 1939, one llene Smith, a person under eighteen years, made her complaint before Harry E. Kean, a justice of the peace of Greeley county, charging Ted Howland with ravishing her. A warrant was duly issued, and on January 22, 1940, a preliminary hearing was held by the justice of the peace. At the conclusion of the hearing, the justice of the peace prepared and filed a transcript, as required by G. S. 1935, 62-630, the only portion with which we are concerned reading as follows:
“Jan. 22. Defendant with Att. Janson appeared for hearing. M. 3?. Trued Co. Att. appeared and llene Smith was sworn and testified. The evidence given shows a crime has been committed and that the defendant may be has committed said crime or rape. Said crime being a fellon, said defendant is ordered bound over (to) the district court in the sum of $1,000 for appearance as the court directs.” (Italics ours.)
Thereafter on February 1, 1940, an information was filed by the county attorney charging defendant with statutory rape committed on or about June 1, 1939. On June 10, 1940, defendant filed a duly verified plea in abatement alleging, inter alia, that no justice of the peace or court or judge had ever found the offense charged had been committed in Greeley county “or that there was or is probable cause to believe the defendant guilty of the offense or offenses charged or attempted to be charged in the information herein.”
When the matter came on to be heard, the state declined to answer or demur to the plea, and controversy arose as to rules of practice. After some discussion as to whether the facts alleged in the plea stood admitted, and whether the transcript of the justice of the peace could be considered, the defendant moved for judgment, but not waiving his right to introduce evidence, which motion the court denied. It may be doubted that failure of the state to plead could be held to be an admission of the facts alleged in the plea in abatement, but certainly the proper practice would have been for the state to file some pleading raising either an issue of fact or of law or of both, so that the defendant could intelligently proceed. In this case, however, the defendant did introduce in evidence the files in the case which included the information, the transcript, complaint and the warrant, without objection from the state, which then called the justice of the peace as a witness. The examination was extended, many of the questions being met with objections which were generally overruled. After testifying that a hearing was held and testimony taken, the justice of.the peace testified he came to the conclusion a crime had been committed, and that some one had committed it. From that-point on, the examination was conducted principally by the court. It asked the witness whether he had concluded there was probable cause to believe the person on trial guilty and he answered:
“Well, I knew from the evidence that the crime had been committed and I knew fi'om the evidence that he was charged with it, and I had no way of knowing, or anybody else, whether or not positive, but he was charged with it.”
The court then advised him it was the duty of the justice of the peace when holding a preliminary to decide whether a crime had been committed, and, if so, whether there was probable ground for believing defendant guilty, and the witness stated he understood that; that he had come to that conclusion and, upon being asked if he meant to convey that by his transcript, answered:
“Yes, sir; that the crime was committed and the defendant was the probably cause of it; I wasn’t positive.”
The court then advised the witness there was a question about the sufficiency of his transcript showing probable cause to believe defendant guilty, if that was his conclusion, and he was asked if he wished to amend his transcript to make the matter clear. An objection was made and the question was answered thus:
“As I saw the matter at that time, and according to the evidence of the girl, the defendant was guilty of the crime, and since I found the crime had been committed it was above my jurisdiction and had to go to the district court, and I didn’t think it was for me to say more than there was a crime committed.”
The witness was then further advised as to the provisions of statute concerning his duties and procedure, and then was asked the following:
“The court will ask you now what conclusion you came to at that time with reference to these points: that the crime charged had been committed and that there were probably grounds for believing the defendant guilty. Did you come to that conclusion or didn’t you? A. I came to that conclusion.
“Q. You don’t need to give any reason for it. I just want to know what conclusion you came to at that time. A. I came to the conclusion the crime had been committed by the evidence and that the defendant might be guilty; I couldn’t be positive; I wasn’t on the grounds.”
Thereupon the state asked that the justice of the peace be permitted to amend, and defendant moved to strike out all of the testimony as incompetent, etc. The court then stated:
“I will tell you I certainly dislike a situation like this. This justice should have had some help and this record should have been in better shape. He doesn’t go to the extent of saying that he thought that there was probable cause to believe he 'was guilty, he says he might be guilty, and that’s practically the same thing. I don’t see there is any basis for amending, how he can amend it to make it any better than it is.” (Italics ours.)
After some colloquy between counsel, the court stated:
“I will permit the justice to amend his transcript if he wants to and give him until 1:30.”
Thereupon the defendant objected to any tampering with the record unless there was something before the court that would authorize the change. The objection was overruled, the court stating:
“He can amend it by attaching an amendment to it that would show upon rts face that it was an amendment made at this time in pursuance of the order of the court,” etc.
After further discussion by counsel the court stated:
“His testimony goes to this extent: that he couldn’t be certain, and he don’t have to be certain; he don’t seem to understand that, but I am convinced that he thought there was probable grounds to believe the defendant guilty, and on that basis he bound him over. He used inept words to express that meaning. He may or may not amend his transcript, but I will give him an opportunity to do so.”
Finally, the county attorney asked the court to direct him to assist the justice of the peace in amending his transcript, defendant objected and the court stated:
“I can obviate that. I believe I will make a ruling to this effect: That on the basis of the testimony of the justice of the peace that his transcript shall stand amended in accordance with his testimony, and on the basis as so amended I will deny the plea in abatement.”
Then defendant moved to strike the amended transcript from the files, and offered' the justice’s docket and, in response to a question as for what purpose, stated that the transcript did not speak the truth, even as directed by the court. The trial court did not rule on the admissibility of the justice’s docket as so offered and defendant then called the justice as his witness and he identified the docket and a certain page of the record dealing with this case, and it was received. A portion of that record was as follows:
“Jan. 22, 1940. Defendant appeared with Att. Janson. llene Smith sworn as witness and testified. The evidence shows that a crime of rape was committed. And that the defendant may he guilty of the crime.” (Italics ours.)
Further discussion was had between court and counsel and the court then ruled:
“The court is of the opinion and finds from the testimony given by the justice that he heard evidence at the preliminary hearing, and from that evidence he concluded that the crime of statutory rape had been committed and that there was reasonable and probable grounds to believe the defendant was guilty, and for that reason he bound him over, and upon that finding I will deny the plea in abatement.”
It is stated in the abstract, and not denied in the briefs, that neither the transcript nor the justice’s docket was amended by any person.
Following the ruling on the plea in abatement, defendant was arraigned, pleaded not guilty, a jury was empaneled, the evidence taken, the cause submitted, the jury returning a verdict of guilty. Thereafter defendant filed his motion in arrest of judgment, raising again the question of the sufficiency of the preliminary hearing, and also his motion for a new trial, which stated, among other grounds, defendant had never had a preliminary hearing and that the court erred in overruling the plea in abatement, in directing an amendment of the transcript of the justice of the peace, etc. These motions were overruled and the defendant sentenced, and he appeals, raising only the question first stated.
In discussing the particular question presented by this appeal, it is to be borne in mind that no appeal by the defendant would lie from the ruling on the plea in abatement until after trial and final judgment on the information (see State v. Brown, 144 Kan. 573, 61 P. 2d 901, and cases cited), and therefore no weight may properly be laid on the fact the jury returned a verdict of guilty at the trial. This is defendant’s first opportunity to present his question to this court. There is no doubt the offense charged in the complaint filed with the justice of the peace was a felony. There was no contention defendant was ever a fugitive from justice, nor that he ever waived a preliminary hearing. In order to expedite discus sion, these matters will be assumed and not repeated in what is later said.
For present purposes it may be said our criminal code provides that on a proper complaint being made a justice of the peace shall cause a warrant to issue, to be served upon the person charged with •committing the offense, who is brought before the justice of the peace for a preliminary hearing. At that hearing, if it shall appear to the justice of the peace no offense has been committed “or that there is not probable cause for charging the prisoner with the offense” he shall be discharged (G. S. 1935, 62-618), but “If it shall appear that an offense has been committed, and that there is probable cause to believe the prisoner guilty . . . the prisoner shall be committed for trial” (G. S. 1935, 62-620), and this with all statutory details shall be certified forthwith by the justice of the peace to the clerk of the district court, and if he fail, he may be proceeded against as for contempt. (G. S. 1935, 62-630.) The offense is prosecuted in the district court on an information filed by the prosecuting attorney of the proper county as informant, but it is provided that no information shall be filed against any person for a felony until he has had or waived a preliminary hearing (G. S. 1935, 62-805). The record before us discloses this method of procedure was generally followed, unless by reason of the failure of the justice of the peace to find and certify there was probable cause to believe the prisoner guilty of the offense charged.
In the many criminal appeals that have been before this court, it does not appear the precise question now under discussion was ever presented or considered. It has been said on many occasions that a general finding made by the examining magistrate that an offense has been committed and that there is probable cause to believe the defendant is guilty of its commission is a sufficient compliance with the criminal code. (See, e.g., State v. Tennison, 39 Kan. 726, 18 Pac. 948; State v. Wellman, 114 Kan. 671, 220 Pac. 271.) And in many cases, such as State v. Bailey, 32 Kan. 83, 3 Pac. 769, and McIntyre v. Sands, 128 Kan. 521, 278 Pac. 761, it has been held the main purpose of a preliminary examination is to determine that a crime has been committed and to give the defendant general information of its nature and inform him of the nature of the evidence he will be required to meet when on trial in the district court, but those cases do not treat of any failure of the examining magistrate to find probable cause to commit the prisoner for trial. And it has been held that if the transcript certified to the district court be attacked on the ground of insufficiency as not showing certain matters, by leave of court the justice of the peace may amend so as to make it speak the truth by making additional entries not inconsistent with the record as previously made and certified. (See State v. Geary, 58 Kan. 502, 49 Pac. 596; State v. Handrub, 113 Kan. 12, 213 Pac. 827, and State v. Parise, 117 Kan. 106, 230 Pac. 304.) Under the statutes pertaining to preliminary examination as quoted above, it is a condition precedent to committing a prisoner for trial by the district court, that from the whole examination it appear a crime has been committed and that there is probable cause to believe the person charged is guilty.
In State v. Goetz, 65 Kan. 125, 69 Pac. 187, the complaint filed charged assault with a deadly weapon with intent to kill. Upon the preliminary examination, the justice announced he did not find probable cause for charging defendants with the offense. We shall not notice fully all that was done, but the county attorney nevertheless filed an information in the district court. A plea in abatement was filed and overruled and on trial defendant was convicted. The conviction was reversed in this court. In discussing the purpose of a preliminary examination and the sufficiency of the plea in abatement, it was said:
“While one object- of a preliminary examination is to inform the defendant of the nature and character of the crime charged against him, it is also a step and a necessary step in the proceeding that leads up to his trial in the district court. He may not be put upon his trial without the finding of the examining magistrate that there is probable cause for believing that he is guilty of the crime charged, and until a preliminary examination has ripened into such a finding and a consequent binding over to the district court, the county attorney is not authorized to file an information against him. ‘The party accused has a right to a preliminary examination and a finding of probable cause, before he can be placed upon his final trial.’ (The State v. Montgomery, 8 Kan. 355.) The defendants’ plea in abatement ought to have been sustained, and the defendants not put upon trial as they were.” (p. 127.) (Italics ours.)
and it was held:
“A preliminary examination, under the provisions of article 5 of the criminal code (Gen. Stat. 1901, §§5475-5505), which does not result in a finding by the examining magistrate that there is probable cause to believe the prisoner guilty of the offense charged, will not authorize the county attorney to file an information against such accused, or the court in proceeding to trial upon an information so filed, when the same is attacked by a plea in abatement.” (Syl. If 1.)
In State v. Pigg, 80 Kan. 481, 103 Pac. 121, the warrant charged grand larceny. Defendant offered to waive a preliminary hearing, but one was held and the magistrate found there was probable cause to believe defendant guilty. The information filed charged larceny from the person. A plea in abatement was filed alleging defendant had never had a preliminary examination for the offense charged in the information. We need not pursue that phase of the matter, but in discussing purpose and sufficiency of such an examination, this court, after quoting a portion of the opinion in the Goetz case as above set forth, said:
“Indeed, the purpose of a preliminary examination may be said to be threefold: (1) To inquire concerning the commission of crime and the connection of the accused with it, in order that he may be informed of the nature and character of the crime charged against him, and, if there be probable cause jor believing him guilty, that the state may take the necessary steps to bring him to trial; (2) to perpetuate testimony; (3) to determine the amount of bail which will probably secure the attendance of the accused to answer the charge.” (p. 484.) (Italics ours.)
And the law of the case as set forth in the first syllabus was in accord.
Before reviewing what transpired at the preliminary hearing, as evidenced by the justice’s transcript, and at the hearing on the plea in abatement in the district court as evidenced by the documentary evidence and the testimony of the justice, we pause to notice what is included in the expression “probable cause.” That expression is used in connection with many branches of the law such as arrest, attachment, the.criminal law, false imprisonment, libel and slander, malicious prosecution, negligence, etc. It has been said to be a term difficult to define, but signifying about the same in law as in common parlance (50 C. J. 420), and in Bouvier’s Law Dictionary, 3 Rawle’s 3d rev., p. 2728, it is thus defined:
“A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged.”
In Webster’s International Dictionary, 2d ed., the term “probable cause” and the word “probable” are thus defined:
“Probable cause. Lam. A reasonable ground of presumption that a charge is well founded. Two definitions of probable cause with reference to the criminal prosecutions and actions in tort are in general acceptance. One is that ‘probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.' The other, and more widely accepted definition, tantamount to this, is: ‘Probable cause means a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.’ (Fed. Cas. 9926.) Probable cause in civil suits is in principle the same.”
“Probable. 1. Having more evidence for than against; supported by evidence strong enough to establish presumption, but not proof, of its truth; as, to make out a probable case; the hypothesis is probable; a highly probable conclusion.
“3. Likely to be or become true or real; such as logically or actually may be or may happen; reasonably, but not certainly, to be believed or expected; as, probable events or developments; the probable author of a book; a probable plot or character.”
In amendment 4 to the United States constitution, dealing with unreasonable searches and seizures, it is provided that no warrant shall issue “but upon probable cause.” In Ex Parte Heacock, 8 Cal. App. 420, 97 Pac. 77, it was held this meant there was a probability a crime had been committed by the person named in the warrant. As shown in the transcript, the justice, in defining defendant’s relation to the offense found to have been committed, did not find probable cause to believe the prisoner guilty. He used the following language: “defendant may be has committed said crime.” It must be said that although the justice used two words, “may” and “be,” he used them in an adverbial sense and intended use of the single word “maybe.” In the justice’s docket, the same finding appears thus: “And that the defendant may be guilty of the crime.”
In the dictionary above mentioned, under the heading “may” that word is defined as an auxiliary verb, indicating liberty, opportunity, permission or possibility, and also:
“May be, and it may be, are used as equivalent to possibly, perhaps, by chance. See 1st maybe.”
Reference to the citation shows:
“Maybe . . . adv. [For it may be.] Perhaps; adj. Possible, probable, but not sure, rare.”
Tested under rules of common grammatical construction, and applying to the words used their ordinary definition, it appears that the justice of the peace in preparing his transcript, as well as his docket from which the transcript was prepared, did not use language which may be interpreted or construed to be a finding there was probable cause to believe the defendant guilty of the offense charged. The most he found was possibility, not probability, of guilt.
With the record in this condition, the state offered the justice as a witness. Under the decisions as above noted, that was permissible, for if the evidence adduced showed that the transcript certified to the district court did not speak the truth, then it was permissible for the justice to amend the transcript to make it do so. On the other hand, his testimony was not competent to make the record show something that was not done at the preliminary hearing, nor to permit him to state he now had reached a conclusion he did not reach at the hearing. He could no more say he now believed there was probable cause to believe the defendant guilty', if he had previously made a contrary finding, than he could say “I made a finding there was probable cause, but now I believe there was not.” He may not impeach his record.
And so we examine the testimony of the justice of the peace to determine whether it discloses that at the preliminary examination the justice found there was probable cause to believe defendant guilty of the offense charged. It may be observed that many of the questions asked were of a leading nature. In the early part of the examination upon being asked whether he had concluded there was probable ground to believe defendant guilty, he answered he knew that a crime was committed, but he had no way of knowing, “but he was charged with it.” Later the same question was put in a different way and he then stated he had come to that conclusion, but on being asked if that was what he meant to convey in his transcript, he qualified his answer. Upon being asked whether he wished to amend his transcript, he made an answer which, taken alone, shows that at the preliminary he did not make any conclusion as to probable cause. The examination continued, and in response to another leading question he stated he came to a conclusion which he immediately qualified by “. . . the defendant might be guilty; I couldn’t be positive,” etc. Thereafter the trial court stated the witness didn’t say there was probable cause — “he says he might be guilty, and that’s practically the same thing.” Thereafter, as shown fully earlier herein, the court gave him permission to amend his transcript, but after objection and argument, ruled that on the basis of the testimony, the transcript should stand amended, and at a later stage, found from the testimony the justice had concluded the crime had been committed and that there was reasonable and probable grounds to believe defendant guilty.
Bearing in mind the rule that the trier of the fact is not compelled to believe all of the testimony of a witness, and the further rule that on appeal the facts as found below are conclusive, the majority of this court believe the above finding is not supported by competent evidence.
It may be noted that only by taking parts of answers and by ignoring the qualifications put thereon by the witness may it be said the justice of the peace made any conclusion, at the time the preliminary was had and when he made his docket and the transcript therefrom, that there was probable cause to believe defendant guilty. The justice testified he thought his duty was only to find a crime had been committed. After being advised as to the statute prescribing his duties, he was again asked as to any conclusion he reached, and he again qualified his answer. The most he ever concluded was that defendant “might be guilty.” And that the trial court, at the conclusion of the justice’s testimony, thought the testimony did not prove he had arrived at any conclusion of probable cause, is evident from its statement:
“He doesn’t go to the extent of sajnng that he thought that there was probable cause ... he says he might be guilty, and that’s practically the same thing. I don’t see there is any basis for amending, how he can amend it to make it any better than it is.”
We concede the right of the court to change its mind. But it is to be remembered there was no further testimony. When the court later said the justice had concluded at the preliminary there was “reasonable and probable cause” it made a finding not supported by the evidence. For reasons hereinbefore noted, we think the statement of the court that “might be guilty” and “probable cause to believe he was guilty” are practically the same thing, is incorrect. The state attempts to justify the ruling of the trial court by the assertion that the language used by the justice means the same thing as the statutory requirement, and that defendant must show to the trial court that some of his substantial rights have been prejudiced before he can be heard upon his plea. A simple answer to that is the statutes under which he was prosecuted provide a certain machinery which must be followed before he can be put upon his trial in the district court. It has always been the rule that the defendant is entitled to a strict construction of the criminal law (State v. Chapman, 33 Kan. 134, 5 Pac. 768; State v. Millhaubt, 144 Kan. 574, 587, 61 P. 2d 1356), and that it is the duty of the courts to enforce a rigid and vigilant observance of those laws designed to preserve inviolate the right of trial by jury and the purity of such trials (State v. Snyder, 20 Kan. 306; State v. Netherton, 128 Kan. 564, 570, 279 Pac. 19). One thing recognized by every decision which has dealt with the question is that where the defendant is not a fugitive from justice, or has not waived it, he can only be committed for trial where, as a result of a preliminary examination, it has been found that a crime has been committed and there is probable cause to believe he is guilty. That is a fundamental and basic right, it is substantial, and certainly if he is deprived of it, he is prejudiced. The enforcement of the criminal laws is important, but in their enforcement it is always to be remembered that it is just as important that the state follow the statutory provision for his prosecution as that he follow the law for the violation of which he is being prosecuted.
The state directs our attention to certain cases and#says that under them the transcript filed was sufficient to confer jurisdiction on the district court. They will be noticed very briefly as bearing on the question now before us. In State v. Tennison, 39 Kan. 726, 731, 18 Pac. 948, and State v. Demming, 79 Kan. 526, 528, 100 Pac. 285, the transcript filed showed probable cause to believe defendant guilty. In State v. Bland, 120 Kan. 754, 244 Pac. 860, the transcript showed the defendant had waived a preliminary examination. In Foley v. Ham, 102 Kan. 66, 169 Pac. 183, the issue was in substance an application for a writ of prohibition to prevent repeated prosecutions, and the question raised was to determine the power of the district court to rule thereon. None of those cases say that an information may be filed against any person until after he shall have had or waived a proper preliminary examination or. be a fugitive from justice as provided in G. S. 1935, 62-805.
It may be suggested that our approach to the question involved is legalistic, and under the true intent and purpose of the crimes act and the criminal code, the state’s contention should be treated with liberality. Such a suggestion is not new. In State v. Fleeman, 102 Kan. 670, 677, 171 Pac. 618, attention was directed to what is now G. S. 1935, 62-1718, that on an appeal in a criminal case, the court must give judgment without regard to technical errors which do not affect the substantial rights of the parties, and after finding such rights had not been invaded, said:
“The code of criminal procedure was framed to supersede the common law with a more rational system. While it is defective in many respects, and in many others exhibits a conservatism which contrasts strongly with its general liberality, it is distinctively modern. The tradition of the common law, however, was so strong that it came near superseding the code. In time the code was rediscovered, and it is the purpose of the court to interpret and apply it according to its true intent and spirit.” (p.677.)
But with due regard to the suggestion, it may not be followed here. The right to a preliminary hearing, and all that is required by statute in respect thereto before a person accused may be informed against in the district court, is a substantial right, which, under any guise, ought not to be frittered away. In a civil case, Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 3 Pac. 284, this court, speaking through Mr. Justice Brewer, said:
“The bill of rights is something more than a mere collection of glittering generalities;” etc. (Syl. If 1.)
Paraphrasing that thought, it may here bé said that the provisions of the criminal'code providing for a preliminary hearing “are something more than a mere collection of glittering generalities.” If the state’s case is so weak it cannot make a showing at the preliminary sufficient to convince the examining magistrate there is probable cause to believe the accused guilty, certainly he should not be committed for trial; on the other hand, if the state has a strong case, it casts no undue burden on it that it make a sufficient disclosure to convince the magistrate there is probable cause. Defendant should be bound over for trial properly or he should not be tried. To take away from him the benefits and protection which the criminal code grants him is to deprive him of his rights and privileges guaranteed to him under our system of government and should not be tolerated.
We conclude that the trial court erred in not sustaining appellant’s plea in abatement, what followed at the trial is a nullity, and that the judgment of the trial court should be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, J.:
On December 24, 1887, Fred. H. Kurtz, a
clothing merchant at Dighton, made an assignment. Prior tO' that time he had purchased large quantities of goods on credit, and the credits having expired, the creditors had for some time been pressing him for payment of their claims. He owed Schuster, Hingston & Co., one of the creditors, about $4,000, and they instituted an attachment suit against Kurtz, and caused a levy to be made on a quarter-section of land in Lane county, as the property of Kurtz. This action resulted in a judgment in favor of Schuster, Hingston & Co., for about $4,200. A few days prior to the assignment; Kurtz had executed a conveyance purporting to convey to Z. J. Anthoni the land mentioned, which was afterward attached at the instance of Schuster, Hingston & Co. Anthoni was a young man who had been employed as a clerk by Kurtz for about a year prior to that time at a small salary. Schuster, Hingston & Co. brought this action to set aside the deed as fraudulent and void, and to subject the land to the payment of their judgment against Kurtz.
• After the plaintiffs had introduced their evidence, a demurrer to the same was interposed by the defendant and sustained by the court; and this ruling is assigned for error. Upon that demurrer, the question before the court was not what portion of the conflicting evidence introduced was the most credible, nor how the conflict should be determined, but it was rather, whether, taking as true every part of the evidence which tended to prove plaintiffs’ claim, did it make out a prima fade case in their favor? All reasonable inferences and presumptions should have been resolved in favor of the plaintiffs, as the demurrer admitted every fact and conclusion which the evidence most favorable to the plaintiffs tended to prove. (Bequillard v. Bartlett, 19 Kas. 382; Brown v. Railroad Co., 31 id.. 1; Wolf v. Washer, 32 id. 533; Christie v. Barnes, 33 id. 317; Rogers v. Hodgson, 46 id. 276.) Looking at the testimony offered in that light, we are led to conclude that the demurrer should have been overruled.
Although there was no direct and positive proof of fraudulent motives on the part of Kurtz and Anthoni, there were many facts and circumstances indicating a want of good faith on the'part of both. It appears that, a short time before the making of the conveyance in question, Kurtz bought large lots of goods from several creditors on short periods of credit. The claims had become due, and he was unable to pay them. Not only this, but it appears that at the time of the convey anee his liabilities exceeded his entire property and assets. Shortly before that time, he had marked down the prices on his goods, and Anthoni had assisted him in doing so. The conveyance was made when he knew he was insolvent, and to Anthoni, who was unable to, and did not, pay him any money. Anthoni gave his note, payable in 30 days, for $1,000, which was alleged to be the agreed consideration, and it does not appear that he had any resources with which to make payment at that time or in the near future. Kurtz was being pressed by his creditors, and was arranging to make an assignment at the time he made the conveyance. The deed was acknowledged on December 20, 1887, and he asked Eiley to act as assignee for him, either on the 20th or 21st of the same month. For about a year previous to that time Anthoni was employed by Kurtz at a monthly salary of from $25 to $46; and in the absence of Kurtz he had charge of the store, and must have had considerable knowledge of the condition of the business. When Kurtz proposed to sell the land, Anthoni replied: “I can’t buy a setting hen.” Notwithstanding this admission, he promised to pay $1,000 within 30 days. After Kurtz had exchanged a deed for Anthoni’s $1,000 note, Kurtz told Anthoni to tell anyone who inquired that the consideration was $1,500 instead of $1,000; and further, that Kurtz had borrowed $500 from Anthoni while he was in Kurtz’s employment, and that Anthoni had given his note for the balance. No such indebtedness, in fact, existed, and Kurtz was only owing Anthoni at that time about $13, which was due him upon his salary as clerk. As stated, Anthoni did not pay any cash, but gave his mere promise to pay; and it appears that at the time he did not have to exceed $25 or $30 in money, and the only property which he possessed was a little furniture and a small piece of real property which was heavily incumbered. He did not have the ability to meet the $1,000 note, and it was not paid at the time of the trial. He purchased without an examination of the land, or any examination of the records with reference to the condition of the title. If every one of these facts and circumstances is taken in the light most favorable to the plaintiffs, it is difficult to reconcile the conduct of Kurtz and Anthoni with honesty of purpose in the transaction. Why did Kurtz, when he was in a failing condition, and in great need of money to satisfy importunate creditors, transfer property to one not able to pay him any money, and who had no prospects that he would be able to pay at the maturity of the promissory note which was taken? Why did he exchange property upon which his creditors had a right to depend, and which would have aided in relieving his financial stress, for an unsecured promissory note? Why did he not even take any security upon the land which he transferred? And, again, why did he advise the grantee to make a false statement as to his being indebted to him in the sum of $500, and as to the consideration paid for the land? These and other matters which have been referred to can possibly be explained and shown to be consistent with honest motives, but they are so indicative of a purpose to hinder, delay and defraud creditors as to require explanation. The circumstances surrounding the case are equally strong against the good faith and fairness of Anthoni. We think that, in the absence of explanatory proof, the court might reasonably infér that the conveyance was voluntary, and that the intent of both grantor and grantee was to hinder and delay the' creditors of the former. Measured by the rule which must apply where a demurrer is interposed, the evidence must be held sufficient to resist the demurrer, and hence there must be a reversal of the judgment and a new trial of the cause.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This action was begun before a justice of the peace October 1, 1887, and judgment entered for plaintiff October 7, 1887, for $107 and costs. Appeal taken to district court of Anderson county, where it was tried by the court a,nd a jury March 22, 1888, resulting in a like judgment. The defendant objected to the reception of any evidence under the bill of particulars in the case, alleging that it did not contain facts sufficient to state a cause of action. This objection was carried all through the case, and raises the question relied on for a reversal of the case here. It is claimed that if this is treated as an action to reform the contract for the sale of the cattle, the bill of particulars does not allege a mutual mistake in the contract, but simply alleges a mistake on the part of the plaintiff, which is not a sufficient allegation to constitute a cause of action for the reformation of a contract.
We do not think the bill of particulars attempts to state a cause of action for the reformation of a ‘contract. If that had been the object sought in the action, it is not likely it would have been brought before a justice of the peace. Nor do we think the plaintiff in his cause of action attempts to rescind the contract for the sale of the cattle, as the defendant argues in support of his demurrer to the evidence of the plaintiff/ We think the plaintiff in his action, in effect, affirms the contract of sale, and sues for a balance due. He does not base his action upon a bill of sale, nor upon any other written contract. He brings it for the recovery of an unpaid balance due on a cattle deal between himself and the defendant, and sets up the whole transaction with all its attending circumstances. The bill of particulars alleges that on September 20, 1887, the plaintiff sold to the defendant —
4 steers, at $32 per head, amounting to.............■.........$128 00
10 steers, at $36 per head, amounting to.................... 360 00
4 cows, weighing 4,500 lbs., at 2c. per lb., amounting to, 90 00 1 cow at $17.....................................................17 00
And all of the aggregate value of.......................$595 00
It then credits the defendant with $488 paid thereon, and claims a balance of $107, which it alleges the defendant refuses to pay. This is the statement of the plaintiff’s 'cause of action. The circumstances attending the deal, including the allegation of mistake in figuring the aggregate price of the cattle by the plaintiff, which is also set out in the bill of particulars, are merely explanatory of the transaction, and not controlling elements thereof. In this view of the case, we think the bill of particulars states a cause of action in favor of the plaintiff against the defendant for the balance claimed, and such action was properly brought before a justice of the peace. The affidavit filed with the motion for a new trial, as well as the conduct of the case by counsel for defendant, shows that the defendant claims that he purchased the 19 head of cattle for the aggregate sum of $488, and that he has therefore paid the full consideration for the cattle. We think, however, the evidence of the plaintiff made a prima facie case in favor of his allegation that he sold the 19 head of cattle for the sum of $595, and that the court did not, therefore, err in overruling the defendant’s demurrer to the plaintiff’s evidence. We also, think the evidence sufficient to sustain the verdict and judgment thereon. This leaves but one further question in the case.
Was the defendant entitled to a new trial, because of unavoidable accident, as claimed in his affidavit filed with his motion for a new trial? We think not. The alleged accident consists in a failure of the defendant to receive a telegraphic message in time for him to attend the trial of the case. The accident was merely the miscarriage of an arrangement by the plaintiff with his own attorneys and the telegraph operator at the station nearest his home, for the transmission and delivery to him of a message giving him information concerning the trial of his case. His failure to receive the message in time was not the result of accident at all, but of the negligence of his own agent. If there had arisen a storm of such a character as to have prevented the transmission of the message over the wires in time to notify the defendant so he could be present at the trial, or of such a character as to have prevented the defendant traveling to the place of trial, it might be said he was prevented by accident, but a mere failure of his own agents to do as he alleges they promised to, in connection with the transmission or delivery of a message, is not an accident. The affidavit shows that the message was received by the agent at 8 o’clock in the morning, and that he did not get it delivered in the country to the defendant until it was too late for him to attend the trial. It was not the business of the agent, as the agent of the telegraph company, to deliver the message away from his office, in the country. He was only required to do so in this instance by his agreement with the defendant, and whatever he did or neglected to do under such agreement, he did or neglected as the agent of the defendant. We do not think a failure of the defendant’s agent to deliver a message to him, as per request or agreement, in time for him to attend the trial furnishes the defendant with any cause, known to the law, for a new trial. He made an arrangement with his own agents for notice. He in no wise relied on any arrangement with the plaintiff, nor with the court. He relied upon his own agents, and without any accident or excuse, so far as we know, they failed him, and we cannot relieve him from the consequences.
We find no material error in the record of this case, and therefore recommend that the judgment of the trial court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is, whether lot number 5, in block number 16, in the city of Bunker Hill, in Russell county, was and is exempt as a homestead from a certain attachment and judgment and order of sale. The attachment was levied upon the property on June 30, 1888. The judgment was rendered on October 8, 1888, and the property was sold on an order of sale issued on such judgment on January 26, 1889; and on March 2,1889, Andrew Hill, who was the defendant below and the judgment debtor, and who is now the defendant in error, moved the court to set aside the sale, upon the ground “that at the time of the rendition of said judgment, said lot 5, block 16, was, and for a long time prior thereto had been and ever since has been, a part of the homestead of said defendant and his family, used and occupied as such, and exempt from seizure and sale by virtue of process issued on said judgment.” The court sustained the motion, and the plaintiff, M. Hoffman, brought the case to this court for review.
As the court below found in favor of Hill, the party claiming the property as his homestead, and against Hoffman, the party claiming under the attachment, the judgment, the order of sale, and the sale, it will be proper for this court to construe the evidence introduced upon the motion to set aside the sale liberally, for the purpose of upholding the views of the court below; and construing the evidence in this manner, we think the facts of the case are substantially as follows: For several years prior to the levy of the aforesaid attachment, Hill was the owner of lots numbers 5 and 6, in block number 16, in the city of Bunker Hill. These lots adjoined each other and constituted only a single tract of land, and together contained only about one-eighth of an acre. Hill was the head of a family consisting of himself, his wife, and an adopted daughter. There was a building on lot number 6, the porch of which extended over the boundary line between the two lots and onto lot number 5, which building Hill and his family occupied and used as a residence, and also as a hotel and boarding-house. There was also a building on lot number 5 which Hill and family used in connection with their residence, hotel, and boarding-house. There were also out-buildings partly on both lots. Hill and his family in fact used these two lots together as a homestead and for hotel and boarding-house purposes; and this they had done for several years prior to the levy of the aforesaid attachment, and they still occupy the same for such purposes. Hoffman claims that the property is not a homestead under the provisions of the homestead exemption laws, for several reasons; but none of them are tenable. He also claims that the question as to whether the property was a homestead or not had been previously determined by the court upon a motion to dissolve the attachment, and had therefore become res adjudicata. But the motion to dissolve the attachment was not based upon the ground that the property was a homestead, nor did it in any manner present any such ground; and it was not filed or prosecuted by Hill and wife, but by Hill alone. Mrs. Hill was not a party to the action, nor did she make any appearance in the case; and it does not appear that she ever consented to the attachment or the judgment or the order of sale or the sale. The motion to discharge the attachment was based upon the ground that the grounds for the attachment were not true.
We think the decision of the court below in this case must be affirmed. It has uniformly been held by this court, from the decision made in the case of Morris v. Ward, 5 Kas. 239, in 1869, down to the present time, that, except for taxes, purchase-money, and improvements, no alienation of the homestead of a husband and wife could be effected, nor any lien or incumbrance placed thereon, except by the joint consent of the husband and wife. And it follows from the decisions made by this and other courts of last resort that it makes no difference that the homestead or a part thereof may be used for some other purpose than as a homestead, where the whole of it constitutes only one tract of land not exceeding in area the amount permitted to be exempted under the homestead exemption laws, and where the part claimed as not a part of the homestead has not been totally abandoned as a part thereof by making it, for instance, another person’s homestead or a part thereof, or by using it or permitting it to be used in some other manner inconsistent with the homestead interests of the husband and wife. (Thomp., Homesteads and Ex., §120, and cases there cited; Hogan v. Manners, 23 Kas. 551; Morrissey v. Donohue, 32 id. 644; Rush v. Gordon, 38 id. 535; Bebb v. Crowe, 39 id. 342; Lazell v. Lazell, 8 Allen, 575; Mercier v. Chace, 11 id. 194; In re Tertelling, 2 Dill. 339.)
We do not think that it is necessary to discuss any of the other points presented by counsel. The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Horton, C. J.:
The material facts in this case are as follows : W. W. Sanborn, of Iowa, obtained on the 21st day of May, 1867, letters-patent from the United States for certain improvements in dairy churns. Prior to 1880, the right to sell and use this patent in Kansas was purchased by W. H. Gibbs. In September, 1880, Alfred Hill and Frank W. Alvord purchased of Gibbs an undivided half of the patent-right for the state of Kansas, excepting a few counties, for $1,000, and James S. Warden purchased the other undivided half for $500. In paying for his undivided quarter, Alvord executed his note of $500 _to James S. Warden, dated September 21, 1880, and due 120 days after date, bearing 12 per cent, interest after maturity. J. F. Watson and D. W. Acker signed this note as sureties for Alvord. When the note became due it was not paid, and on November 28, 1881, the note was renewed by Watson and Acker, payable eight months after date. George C. Brownell also signed this note. Subsequently, the note was sold and indorsed by James S. Warden to the Exchange National Bank, of Atchison. On the 16th day of March, 1883, the Exchange Bank brought its action against Watson, Acker, Brownell and Warden upon this note, and, upon personal service, obtained judgment against all the parties. On the 23d of July, 1883, this action was commenced by Acker and Watson against Warden for damages, alleging fraud and deceit on the part of Warden in procuring both of these notes referred to. Upon the trial, after the plaintiffs had introduced all of their evidence, the defendant interposed a demurrer thereto, which was sustained by the court. The plaintiffs excepted, and bring the case here for review.
It is claimed that Acker and Watson were induced to sign the note of Alvord to Warden of $500 on September 21,1880, by the false representations of Warden. They claim that he promised to purchase and pay $1,000 for an undivided half of the patent-right; second, that he represented that the sale of the patent-right for two counties in Kansas had been made, which would nearly pay the note; and, third, that he stated the patent-right was valuable and useful, when it was worthless and of no value whatever. It is also claimed that the evidence shows that Warden purchased the patent-right for Kansas on September 17,1880, prior to the time that Alvord executed any note, or had purchased any part thereof. It appears, from the evidence produced upon the trial, that Warden never had any conversation with Acker and Watson prior to their signing the note of September 21,1880; therefore he did not personally by any representations or promises induce them to become the sureties of Alvord. Alvord made some such representations to Acker and Watson, which he said Warden had made to him, and it appears that Warden did make some such statements to Alvord. It is clearly appar ent, however, from Alvord’s own statements, that the pretended sales of the patent-right, prior to his purchase, were not relied upon by Alvord, because he cannot remember the amount; and his other evidence shows that he was eager to make the purchase of a quarter interest in the patent-right, if he could raise the purchase-price, or could give a good note therefor. It is evident that Alvord, after a short examination of the dairy churn in operation, and his conversation with Warden, was induced to believe that the patent-right was a valuable one, and that, if properly operated, he could make money out of it. He also was induced to buy an interest in the patent-right because he thought that Warden was a first-class business man and would not take an interest if the patent was not all right. The amount that Warden was to pay for an undivided half was not so important to Alvord as the fact that Warden thought the patent-right of so much value as to become interested therein and the owner of an undivided half thereof. Alvord testified, among other things, as follows:
“Ques. How long were you engaged in examining the patent churn? Ans. Why, not a great while. I think at the time I first saw it he was in the act of churning.
“Q. You thought it was a pretty good thing? A. Yes, sir.
“ Q,. And made up your mind, as I understand you to say, that you would take an interest in it if you could put up your part of the money or the security? A. Yes, sir.
“ Q,. Did you have considerable talk with Mr. Gibbs about the operation of the churn ? A. Not a great deal; no. I had a considerable talk with him as to dealing in patent-rights.
“Q. Did you see the churn operate yourself there at the fair grounds? A. Yes, sir.
“Q,. You saw, then, that you believed it was capable of going? A. Yes, sir.
“Q. And you, in the exercise of your own good judgment, thought it was a pretty good thing at that time? A. Yes, sir.
“Q,. And after that you had a talk with Warden, I understand you, and he told you to get security on this note for $500, subsequent to that time? A. Yes, sir.
“Q. Now, at the time you spoke to Acker and Watson, had they any knowledge about your purchasing this patent-right, so far as you knew? A. Yes, I think they had.
“Q. Previous to that time? A. Yes, I think they did.
“Q,. They knew what this note was for? A. Yes.
“Q. They knew that you had given this note for an interest in this patent-right? A. Yes, sir. •
“Q. You explained to them fully what you wanted it for, and asked them to go your security? A. Yes, sir.
“Q. They had no interest in the patent-right themselves? A. No, sir.
“ Q,. They were simply accommodating -you by indorsing your note? A. Yes, sir.
“Q,. That was the way you understood it? A. That was the understanding.
“Q,. And I understand you to say that Mr. Warden was not present when they signed this note? A. No, sir; he was not.
“ Q. They signed this note upon your request and upon your solicitation alone? A. Yes, sir.
“Q,. After these papers were fixed up you started out to sell these patent-rights? A. Yes, sir.
“Q. You sold how many rights? A. I sold two.
“Q,. What did you receive for them? A. I received $160 for one right, and I traded the right of Clay county for a man’s interest in a timber claim.
“Q,. Did you afterward sell the timber claim? A., No, sir; I traded him, besides, a horse or pony that I had.
“Q. What was the timber claim worth? A. Well, I don’t know.
“Q. You got $160 in money for the other? A. I couldn’t have got anything for it, I suppose; I tried to.
“Q. You abandoned it, did you? A. Yes, sir.
“Q. Did you make any other sales? A. No, sir.
“Q,. Was that the money you realized? A. That was all the money I realized.
“Q. And at Yalley Falls, after you had attempted to manufacture this churn unsuccessfully, you threw up the business? A. Yes, sir.
“Q,. Subsequent to that, you and Acker and Watson were sued on the note, were you not, in this court? A. I believe we were.”
The evidence of W. H. Gibbs shows that he sold the patent-right to Hill, Alvord, and Warden; that an undivided half was for Hill and Alvord, and the other undivided half for Warden; that Warden advanced the money for the undivided half purchase by Hill and Alvord, less the discount, and that Warden paid the balance of the $1,500 for which the whole patent-right was sold for Kansas, excepting a few counties. His evidence also shows that the patent-right purchased by Hill, Alvord and Warden is a good and- useful invention, and in skillful hands works well. All of the evidence tends to show that Warden believed the patent-right a valuable one, and also believed, at the time he associated with him Hill and Alvord in the purchase of it, that money could be made in the sale of the patent-right in Kansas. There is no evidence showing or tending to show that Warden ever supposed or believed that the patent-right was worthless. It did not appear upon the trial that either Acker or Watson was induced to sign the first note by the fraud or deceit of Warden. The renewal, or second note, which was given to take up the first note, was executed long after all the foregoing facts were known to Alvord and Watson, and the only false statement which is alleged against Warden concerning the execution of the second note is the statement or representation that Alvord got $500 from him at his bank on the first note. The evidence shows that the amount of this note, less discount, was turned over by Warden to Gibbs; and, although Alvord did not in person obtain $500 at the counter of Warden’s bank, yet the $500, less discount, in money was actually paid to Gibbs by Warden for the benefit of Alvord. Warden may have made some statements in the matter which were not wholly true, but it is not every false statement that is actionable. It is immaterial whether Warden had paid to Alvord at his bank counter the $500, or had paid it to Gibbs for Alvord. (In re Cameron, 44 Kas. 64.) As Gibbs sold the patent-right for $L,500, it is possible that Alvord paid more than he ought to have paid for an undivided quarter, or that, on account of the payment of $500, he is entitled to a larger share than an undivided quarter of the patent-right; but no such fraud or deceit is shown as to entitle the plaintiff to recover upon the testimony disclosed.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution instituted originally before a justice of the peace of Geary county upon a complaint containing two counts, the first charging the defendant, John Estlinbaum, with the offense of unlawfully selling intoxicating liquors; and the second charging him with the offense of unlawfully keeping and maintaining a common nuisance, to wit, a place where intoxicating liquors were kept for unlawful sale and barter. The defendant, having been tried, • found guilty and sentenced in the justice’s court, appealed to the district court, where he was again tried, and he was there acquitted upon the first count and convicted upon the second; and he was then sentenced upon the second count to pay a fine of $200, and to be imprisoned in the county jail for 30 days, and the nuisance was ordered to be abated; and the defendant now appeals to this court.
In this court the defendant claims that the court below erred as follows: (1) In overruling his challenges of the jurors Durland and Cormack; (2) in permitting evidence to be introduced on the part of the state tending to show sales of which the prosecuting witness had no knowledge; (3) in giving the sixth and ninth instructions. We shall consider these alleged errors in their order.
I. The challenges of the jurors Durland and Cormack were for cause, and for the alleged reason that they were not impartial jurors for the following reasons: It appeared that they belonged to an organization called the “ Good Templars,” the object of which, as shown by the testimony of one of such jurors, was as follows: “ He did not understand the special object of such organization to be the enforcement of said [prohibitory liquor] law among others, but to promote temperance among its members by moral suasion.” This certainly does not show that the jurors were not impartial, or that they could not try the case impartially, or that they were in any manner incompetent. These two jurors were afterward challenged peremptorily and their places were then filled with other jurors, and the defendant afterward exhausted all his peremptory challenges.
II. The second and third alleged errors present only one question of law, and that is, whether the state had the right, in order to prove the charge set forth in the second count of the complaint, to prove that the defendant made other sales of intoxicating liquors at the place charged to be a nuisance than those of which the prosecuting witness had knowledge. Such evidence was introduced, and the defendant claims that it was incompetent and prejudicial, and cites the case of The State v. Brooks, 33 Kas. 708, as authority for his contention. That case, however, can have no possible application to the present case. The gravamen of the offense charged in the Brooks case was the unlawful selling of intoxicating liquors; while the gravamen of the offense charged in the present case is the unlawful keeping of a place for the sale of intoxicating liquors. In that case it was absolutely necessary to prove an unlawful sale, and to prove the very one which was in effect charged in the complaint; while in the present case it was not necessary for the state to prove any sale, but only to prove that the defendant kept aplace for iheu/nlawful sale of intoxicating liquors; but in order to prove that the defendant kept such a place, and that the liquors were in fact kept for sale, the state had the right to prove that the defendant actually sold them at such place. The case of The State v. Reno, 41 Kas. 674, 684, No. 8 of the syllabus and the opinion, is applicable to this case, and is against the defendant’s contention. In a case like the present the state may prove as many sales as it chooses, provided they are unlawful sales of intoxicating liquors made by the defendant at the place charged, and it makes no difference whether the county attorney or prosecuting witness knew of such sales or not prior to the commencement of the prosecution.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Johnston, J.:
This action was brought by W. E. Gibbs against the Wichita & Colorado Railway Company to recover, as damages, the value of the plaintiff’s cow and calf, alleged to have been killed by the negligence of the railway company in the operation of its railroad, at a point where it was not fenced. The jury returned a verdict in favor of Gibbs for $64.59, and judgment was rendered thereon. The railway company alleges numerous errors. The first complaint is, that the amended bill of particulars, upon which the case was tried, failed to state facts sufficient to constitute a cause of action, and therefore the court erred in overruling the demurrer thereto. As the action was brought under the railroad stock law of 1874, it was essential to allege that the stock was killed or injured in the county in which the suit was commenced; and it is contended that there is an entire omission of any allegation in regard to the county in which the animal in controversy was alleged to have been killed. Although the allegations are not as explicit in this respect as they should have been, we think they sufficiently show that the accident occurred in Reno county, where the action was brought. It is alleged that the defendant company owned and operated a road over and across the plaintiff’s farm, describing it, in Reno county, Kansas, and that the defendant killed plaintiff’s cow “on the said railway track of said defendant, and by the operation of said railway.” No other railroad or railway track is mentioned in the pleadings except the one through the plaintiff’s farm, which is alleged to be in Reno county.
It was found by the jury that the cow was killed by a train operated upon the line of the Wichita & Colorado railway, but that it was killed by a construction train operated and controlled by Guy Phillips. He contracted to build the railway for the company for a stipulated consideration, and at the time the cow was killed the road was incomplete. The company complains because the court refused to receive in testimony the contract between the company and Phillips, which was offered for the purpose of showing that the killing oc curred when the road was in the course of construction and was still under the control of the contractor. The contract; however, contained nothing showing who was in control of the road at the time complained of, nothing which would shed any light upon the questions in dispute, and hence the testimony offered was immaterial. There was no question but that Phillips was the contractor engaged in building the road between Wichita and Hutchinson, nor any question that the construction of the road was not entirely finished. There is evidence, however, that the road was so far completed through the land of the defendant in error that it could be used by the company, and that the railway company was in possession of the road when the accident is claimed to have occurred. It was operating regular trains through his farm, and carrying both passengers and freight.
It is claimed by the company that, because the cow was killed by the construction train, which was operated and controlled by the contractor, it cannot be held liable for damages. The record shows that the company was, the owner of the road, and was engaged in its operation. The fact that the road was incomplete, or that the company permitted Phillips to run a construction train over it, will not absolve it from liability. It was not inclosed with a lawful fence, and the statute casts a liability upon the company for cattle killed or injured by the engine or cars on such railway, “and that this does not require that such engine and cars be owned and operated by the company, was decided in the case of K. C. F. S. & G. Rld. Co. v. Ewing, 23 Kas. 273.” (K. P. Rly. Co. v. Wood, 24 id. 619. See, also, Railway Co. v. Curl, 28 id. 622.) Under the cases cited, the contention of the plaintiff in error cannot be sustained, and there was no error in refusing the instruction which was requested, or in denying the motion of plaintiff in error for judgment upon the findings of the jury.
The objections made against the admission of testimony are not good. The company contends that the verdict is not sustained by sufficient evidence. The testimony, though very weak, tends to sustain the claim of the defendant in error that the cow was killed in the operation of the railroad ; but we are unable to find testimony which justified the jury in awarding damages in the sum of $64.59. The evidence of the plaintiff and his witnesses placed the value of the cow at $35, and the question of damages for the loss of the calf was excluded from the consideration of the jury. The only evidence as to any attorney’s fee fixed the sum of $20 as a proper and reasonable charge. Gibbs, then, is entitled to $35, the value of the cow, with interest at 7 per cent, on that sum from September 4, 1886, when the cow was killed, until July 18,1888, when the verdict was returned, which was $4.59, making the amount $39.59; and this amount, with the $20 attorney’s fee, is all that should have been included in the verdict. The judgment must, therefore, be modified, and the case is remanded, with the direction to the district court to enter judgment in favor of Gibbs for $59.59.
The costs in this court will be divided between the parties.
All the Justices concurring. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
This is an appeal from a judgment sustaining a demurrer to a petition in which plaintiff sought a recovery of damages for’malpractice.
The trial court’s ruling was based on the two years’ limitation allowed by statute within which an action of that character, sounding in tort, can be maintained. (G. S. 1935, 60-306, 3d clause.)
In her petition, which was filed on November 16, 1939, plaintiff alleged that on January 12,1935, she was suffering from a tumorous growth in her abdomen and was advised to consult the defendant, who had been highly recommended as a physician and surgeon and as “one who could correctly advise her as to whether or not she needed an operation.” Accordingly she and her husband called at defendant’s office and made a full disclosure of her physical ailment and asked his advice; and that defendant said he was an X-ray specialist and that he could guarantee to cure the tumorous growth that ailed her in ten X-ray treatments at $10 each, or for $75 in all. Plaintiff alleged that she paid the required amount in installments; and on January 12, 1935, she began taking X-ray treatments in defendant’s office and under his direction and so continued until February 18,1936, by which time she had taken about 90 such treatments; and that thereafter defendant began and continued to give other types of treatment until May, 1939, at which time she discharged him from further professional services.
Plaintiff also alleged that on February 18, 1936, and “for some three months thereafter” plaintiff took iodine internally as recommended by defendant; that at his special direction and request, between March 6 and May 12, 1936, she had 19 teeth extracted; that about February, 1936, plaintiff began to suffer from a new ailment, which defendant described as rheumatism and treated her therefor; that in February, 1935, plaintiff ceased to menstruate and became sterile — “which this plaintiff has learned since arose from and was caused by the X-ray treatments heretofore mentioned.”
Plaintiff also alleged defendant continued to treat the plaintiff until May, 1939, and that ever since she first consulted defendant in January, 1935, until she discharged defendant in 1939, she suffered continuously. Without a specific allegation that such suffering was the result of defendant’s malpractice, she alleged—
“That had she been properly and skillfully cared for and treated in the winter and spring of 1938 and 1939 she would have been at least temporarily relieved of pain and possibly permanently cured; that said defendant during the fall and winter of 1938 and spring of 1939 administered to this plaintiff treatments that were wholly unsuited to the malady from which she suffered, but that all of these facts were unknown to plaintiff and concealed by the defendant and something that the plaintiff was not aware of until M,ay, 1939.
“That all of the ninety-odd X-ray treatments given by this defendant to plaintiff lasted thirty minutes to two hours each time and caused great suffering and excruciating pain to the plaintiff which plaintiff was advised by the defendant was a necessary sequel and that she must suffer and endure the suffering in order to gain the relief which she sought; that the plaintiff has learned since that time that the same was unnecessary and that if said treatments had been properly administered she would not have suffered so.”
Plaintiff’s petition continued:
“Plaintiff further states that after defendant ceased to administer X-ray treatments and approximately in March, 1936, the plaintiff’s abdomen became hard in spots and gradually caked all over; the plaintiff began to run a temperature and that the said temperature, caking of the abdominal wall and great pain in the abdomen continued on from March 1, 1936, until November 1, 1936; that thereafter festerous sores began to break out on plaintiff’s abdomen and that said sores with ‘scabs’ over them would be extremely painful at times and at other times not evidencing much pain; that this continued until about the 1st of February, 1937, at which time said sores became more festerous and more painful and that all of this time complained of and at times hereinafter complained of up until May, 1939, this plaintiff was under the constant treatment of the defendant, and although the plaintiff asked the defendant many times what caused the pain and suffering and what caused her injuries, defendant would decline and continued to decline to advise the plaintiff the cause and nature of her injuries, but told her that he would treat her free of charge. Plaintiff further states that said defendant did continue to treat said plaintiff free of charge up to the time he was discharged in May, 1939.”
Recapitulating the grounds of her cause of action, plaintiff alleged that defendant was guilty of negligence in giving her 90 X-ray treatments instead of 10 as he “had promised, advised and agreed,” and that defendant—
“Was guilty of willful and wanton negligence in his treatment of this plaintiff by the use of X-ray and subsequent treatments thereafter in the following respects, to wit: that the defendant held himself out to the public as one well versed in the use of Xray as treatment for various bodily ailments and particularly the treatment of tumor, that he claimed to be well qualified and equipped for the performance of such treatment, that he orally stated to this plaintiff in the presence of her husband that in ten treatments of Xray he could cure her of the tumor within her body, that instead of perfecting a cure with ten treatments he applied approximately ninety treatments of from one to two hours in length each, that said treatments caused the bodily injuries complained of in the original petition filed herein; that he used outmoded and antiquated X-ray equipment in the course of these treatments, all of which facts'were known to the defendant and wholly unknown to the plaintiff. . . . that [in May, 1939] she learned the true status of her injuries and the true status of the treatments she received and the fact that the care she was receiving from the defendant was not only improper and inadequate but was grossly unsuited as a treatment for this plaintiff and that all of these things were known to the defendant and were within his knowledge and were concealed by him from the plaintiff, and that by virtue thereof, the defendant was guilty of willful and wanton negligence which caused untold suffering and pain to the plaintiff and irreparable loss and damage.”
Plaintiff concluded with a prayer for actual and punitive damages.
To this petition counsel for defendant moved to strike certain allegations therefrom and to make other allegations more definite and certain. During the oral argument before the trial court on those motions, defendant was permitted to dictate into the record a demurrer to plaintiff’s petition. Thereupon the trial court overruled defendant’s motions and sustained the demurrer.
Judgment was entered accordingly, and plaintiff brings the case here for review.
At the inception of his argument, counsel for plaintiff makes this candid statement:
“The plaintiff recognizes that the above two-year statute governs the question in this case and that, as this court has said many times, a ‘malpractice’ suit is a tort action and this court has swept aside, in suits of this type, the question of implied or explicit written or oral contractual considerations between patient and doctor. The plaintiff does contend, however, that a malpractice suit is an ‘action ex delicto’ for the breach of a duty, that is, the duty that one who holds himself out as a highly trained physician and surgeon must properly perform the service which he represents he is able to perform.
“The defendant by his demurrer admits that this plaintiff has been irreparably damaged and has suffered great pain and agony by the acts of malpractice of the defendant, but says that this case should be ‘thrown out of court’ by the simple expedient of a demurrer, on the theory that, though he admits apparently the X-ray treatments, some ninety in number were wholly unsuited, of long duration, causing terrible and excruciating pain, that since they ended sometime in 1936, and at least prior to May, 1936, and that since this action was not commenced until after May, 1939, the same is barred by the statute of limitations.”
Counsel seems to argue that because plaintiff was under defendant’s professional care until May, 1939, the two years’ time allowed in which to bring this action had not expired — which does not follow. The two years allowed by the statute of limitations in which to bring an action for damages for malpractice begins to run from the time such wrongdoing is committed. So say nearly all the authorities. Counsel himself cites our own familiar cases to this effect. Thus in Coulter v. Sharp, 145 Kan. 28, 64 P. 2d 564, it was held:
“In an action for damages the record is examined, and it is held the gravamen of the action is malpractice, which is a tort, to which the two-year statute of limitations applies.” (Syl.)
See, also, Becker v. Porter, 119 Kan. 626, 240 Pac. 584; Travis v. Bishoff, 143 Kan. 283, 54 P. 2d 955; Graham v. Updegraph, 144 Kan. 45, 58 P. 2d 475; Blackburn v. Security Benefit Ass’n, 149 Kan. 89, 86 P. 2d 536.
In his brief counsel for plaintiff says:
“I feel that the courts should not permit doctors and surgeons to escape the consequences of their negligent acts by the simple expedient of the státute of limitations.”
But the zeal of counsel should not carry him so far as to urge this court to intrude on the prerogatives of the legislature:
“We — don’t—make-—law. We are bound to interpret it as found.” (State v. Lewis, 19 Kan. 260, 266.)
Another basis for damages argued is that defendant represented himself as a highly skilled physician, surgeon and X-ray specialist. Nowhere in plaintiff’s petition, however, does she allege that this representation was false — if, indeed, it would form a sufficient basis for a cause of action, which need not now be decided.
It is also contended-—
“That the defendant either knew of his acts of malpractice and fraudulently concealed them from the plaintiff, over the entire period of time referred to, or if he didn’t know, by virtue of his representations of his skill and prowess, he should have known, and in either event he is liable to the plaintiff for the damages she sustained at his hands.”
The intimation that defendant “fraudulently concealed” his acts of alleged malpractice is wholly gratuitous. No facts are pleaded which justify such contention.
Clearly plaintiff’s action, the allegations of which are merely taken as true for the purposes of considering the demurrer and not otherwise, was barred by the statute of limitations.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
One of the defendants in the above-entitled action appeals from an order of the district court denying her application to vacate a judgment rendered against her for' the asserted reason the judgment was outside the issues involved in the action and therefore void.
Insofar as it is necessary to note, the pleadings disclosed the following: On August 10,1936, plaintiff commenced her action by filing her petition in which she alleged that she owned an undivided ih interest in an oil and gas lease on a certain tract in McPherson county, upon which there was a producing well, which interest she obtained by assignment from Curt Hawkins; that on November 6, 1933, Curt Hawkins and the defendants M. A. Lyman, Pauline Lyman, Alice Ruse and Lou E. Hartley and one Spitz entered into a trust agreement with defendants John L. Gleason and Fred U. T. Smith, a copy of the agreement being attached to the petition; that Smith and Gleason accepted the trust and ever since have received the rents, etc., from the trust property and have disposed of part of the same; have paid plaintiff $125.79 and no more, although more than $65,000 in oil had been produced and sold, and have converted the same to their own use; that plaintiff had requested an accounting, which had been refused; that defendant Clara A. Hamilton was the owner of the real estate which the oil and gas lease covered; that defendant Blair had a mechanic’s lien of record against the lease, and that sixteen named defendants, including Angeline M. Foraker and others, as well as plaintiff’s co-beneficiaries, claimed some interest in the leasehold, the nature of which was unknown to plaintiff. Her prayer was that an account be taken of the trust property and that the trustees be required to account to plaintiff for her portion thereof; that they be enjoined from converting the property to their use; that they be removed and another trustee be appointed; that in the meantime a receiver be appointed and that plaintiff have such other and further relief as to the court should seem equitable. The trust agreement affected only the undivided seven-sixteenths interest of Curt Hawkins and five other persons, not including defendant Angeline M. Foraker.
On the same day the petition was filed, the trial court made its order appointing a receiver of the—
“Trust property including the oil and gas leasehold herein described to take charge of the same together with oil well and personal property thereon situated . . . and that said receiver shall operate said trust property, produce said oil well, collect revenue from the same, and do all matters connected with said oil and gas lease and trust property as are necessary under the orders of this court and administer said trust property, including said oil and gas lease and bank account, until the further order of this court: . . .
“It is further ordered, that any money due Fred U. T. Smith and John L. Gleason, trustees, or any oil runs accumulated or that may hereafter accumulate and due or to become due the seven-eighths working interest on said leasehold shall be ■paid to the said receiver,” etc. (Italics ours.)
On July 13, 1937, Fred U. T. Smith, individually and as trustee, filed his answer in which he alleged he had leased for oil and gas purposes the lands described in the pleadings, and that Harve For-aker, husband of Angeline M. Foraker, was associated with him in obtaining the lease. He alleged that in order to finance drilling of the well it was necessary to sell working interests and he and For-aker agreed with Gleason, who should hold the property in trust; that a one-half interest in the lease should belong to Smith, out of which should be financed the drilling of the well and of the remaining half Smith was to have 6/32, Foraker 5/32 and Gleason 5/32; that interests in the oil and gas leasehold estate were conveyed to numerous persons, some of whom conveyed to others, and he set out a list of what was stated to be all of the owners and their respective shares. This list shows that plaintiff and various defendants owned interests and that Angeline M. Foraker owned a 40/256 interest. He further alleged facts pertaining to the development and operation of the lease, the income arising therefrom, and that his co-defendant Gleason had collected all of the oil runs, with certain exceptions noted, and that Gleason was indebted to all of the other interest holders in the sum of $3,587. He further alleged that his co-defendant, Angeline M. Foraker, was the wife of Harve .Foraker and had succeeded to his interest in the oil and gas leasehold estate and that she had collected $52.18 more than her pro-rata share. He also alleged the amounts received by various interest holders who had not received their pro-rata shares, the amount of outstanding claims for supplies, taxes, pay roll, etc.; that certain named defendants, not including Angeline M. Foraker, had no interest in the property; that he had no claim individually and his only interest was as a trustee and by reason of the acts of his co-trustee Gleason, he had been unable to fully perform the operating agreement previously alleged. Other of his allegations need not be noted. His prayer was that such judgments and decrees be rendered as would protect the interests of plaintiff and all of the defendants. On February 23, 1937, the defendants, Mrs. M. A. Lyman, Pauline Lyman, Jewell Lyman and Eveline May Ohlerking, filed their answers, making certain admissions and denials, and setting up amounts they had each received and that each was entitled to receive further amounts; that all sums from the sale of oil from the well should have been prorated among the interest holders according to their respective interests, and that no preference should have been shown John L. Gleason, Elsie C. C. Gleason and May Smith. The answer then alleged:
“Fifth: The defendants herein named for further answer allege and state that without the knowledge of the defendants herein named, the defendant, Angeline M. Foraker, an interest-holder, did collect and pay herself certain sums of money, which amounts are unknown to these defendants, but certain figures in this respect are set out in paragraph eleven of defendant Fred U. T. Smith’s answer.
“Sixth: Said defendants, further answering, say that their said codefend-ants, John L. Gleason, Elsie C. C. Gleason, May Smith and Angeline M. Foraker, and each and all of them, should pay into the clerk of this court all moneys received or paid to them or either of them in excess of the pro-rata shares received by these defendants which moneys should then be prorated by this court among all the interest holders according to their respective interests. That in lieu of the return of said money or upon failure of said co-defendants so to do these defendants and their co-defendants like situated should have a first and prior lien upon all goods, moneys, property, chattels and leasehold estate for the payment thereof.”
They prayed that an accounting be taken of all the trust property, etc., and—
“If any of the parties to said action have received more than their just pro-rata share of said funds that he or they be required to pay the excess so received into this court for a proper distribution thereof,” etc.
Although the record as abstracted does not disclose it, we are told in the briefs that when the petition was filed a summons was issued for the defendant Angeline M. Foraker, but for some unknown reason no return was made by the sheriff. However, after all of the above pleadings had been filed, apparently on praecipe of the plaintiff, under date of May 19, 1938, a summons was issued and later returned showing personal service on Angeline M. Foraker. This summons was endorsed:
“Suit Brought Foe — If Defendant fail to answer, judgment will be taken as prayed for, and for costs of this action.”
Mrs. Foraker filed no pleading or answer and the record shows she was always in default.
The matter came on for hearing on March 20,1939, at which time the court found various defendants had been properly served with summons, and that by reason of their respective cross petitions certain persons had valid claims against the leasehold property and judgments in rem were adjudged, the receiver was ordered to offer for sale the leasehold and equipment thereon and report the bids to the court and after the sale to pay the proceeds as directed. On October 31, 1939, the matter came on for further hearing, at which time the report of the receiver was approved and the receiver was ordered to make certain payments of expenses, the balance remaining being prorated among those claimants receiving judgments in rem. On March 27, 1940, a further hearing was had. The journal entry shows that although Angeline M. Foraker had been personally served with summons, she was wholly in default of any plead ing. The trial court found that Angeline M. Foraker was indebted to plaintiff and to her co-defendants, Mrs. M. A. Lyman, Pauline Lyman, Jewell Lyman and Eveline May Ohlerking, in the sum of $530.46, and that other of the defendants were indebted in other amounts, with which we are not now concerned, and judgment was rendered accordingly; that the receiver had performed all duties enjoined on him by the law and the orders of the court and had made distribution of all moneys in his hands and should be discharged, and it was so ordered.
On July 8, 1940, Angeline M. Foraker filed her motion to vacate the judgment against her. This motion recited rendition of the judgment and alleged it was void as being outside any issue pleaded or tendered in the cause; that the petition of plaintiff was for an accounting and neither alleged nor claimed any rights or judgments against her; that she had never appeared in the cause and had no knowledge of the purported hearing or of the findings or judgment against her in this cause until some time after the same was entered of record; that she was never served with or had any knowledge of any pleadings filed by the judgment creditors and that there was no pleading in the cause that would raise any issue or claim against her as is purported and has been adjudicated against her; that if any such claim had been raised it was without any issue in the cause and the court was without jurisdiction to make the aforesaid purported findings and judgments against her; that the same are void and should be set aside.
On hearing, the above motion was denied and Angeline M. Foraker appeals, specifying as error the ruling on the motion.
Our code of civil procedure provides that a void judgment may be vacated at any time on the motion of any party affected thereby (G. S. 1935, 60-3009). There is therefore involved no question of procedure here. The sole contention is that the judgment was as to a matter outside the issues presented by the pleadings and therefore void. Appellant directs our attention primarily to Gille v. Emmons, 58 Kan. 118, 48 Pac. 569, where it was held:
“A judgment entirely outside the issues in the case and upon a matter not submitted to the court for its determination, is a nullity; and may be vacated and set aside at any time upon motion of the defendant.” (Syl. ¶ 1.)
and to a number of cases where that rule was followed, viz.: New v. Smith, 86 Kan. 1, 119 Pac. 380; Brinkerhoff v. Bank, 109 Kan. 700, 205 Pac. 779; Herring v. Blue Mound Mining Co., 124 Kan. 171, 257 Pac. 955; Skaer v. Capsey, 127 Kan. 383, 273 Pac. 464. The rule was also referred to and applied in the more recent cases, of Southern Kan. Stage Lines v. Webb, 141 Kan. 476, 41 P. 2d 1025, and Patton v. Sartin, 149 Kan. 299, 87 P. 2d 589. With that rule as a premise, appellant argues that the action set out in the petition is against Smith and Gleason, individually and as trustees, to compel an accounting under a trust agreement attached to the petition as a part thereof, and for the appointment of a receiver of the trust property, and that there is no claim of any kind made against the appellant, personal or otherwise, and that the petition raises no issue as to the appellant. She then takes up the answer of Smith and argues that the allegation she has received more than her pro-rata share from oil runs may be informative but has no binding effect on her. And the allegations of the answer of the defendants who recovered judgment against her are disposed of in similar fashion. We think appellant’s method of approach ignores certain allegations of the petition, the nature of the action, and applicable principles of law.
Taking up first the nature of the action, it is apparent that it was of an equitable nature. While it was clear that plaintiff sought to have her trustee account to her, it was also clear from the petition that the specific trust property was part of a greater whole, an oil and gas leasehold estate, and that to determine whether plaintiff had or would receive her full beneficial share it was necessary to determine not only the share her trustee did receive, but the share he should have received from the entire venture. That was inherent in the allegations charging that the defendant Hamilton owned the leased real estate; that defendant Blair had a mechanic’s lien and that sixteen other defendants, including Angeline M. Foraker, claimed right, title and interest in and to the leasehold. That such was the view of the trial court appears from its order appointing a receiver, not. only for the property included in the trust agreement, but for the full seven-eighths working interest on the leasehold. When defendant Smith filed his answer, it appeared that Mrs. Fora-ker had received more than her pro-rata share, and when the remaining answering defendants filed their answer, it again appeared there was a demand that she account. It was at this stage that Mrs. Foraker was served with summons. That she was properly made a party cannot be doubted, for it is provided by the code of civil procedure that—
“Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party .to a complete determination or settlement of the question involved therein.” (G. S. 1935, 60-411.)
When Mrs. Foraker was served with summons, either she then reviewed the record and discovered the leasehold interest was in possession of the trial court’s receiver, and that allegations had been made she claimed an interest therein and had received more than her pro-rata share, or she chose to ignore the notice with necessary consequences. In any event, she did nothing.
There is and can be no question but that the district court of McPherson county had jurisdiction of the subject matter; there is no contention Mrs. Foraker was not served with summons, and the remaining question is, What was the extent of the power of the district court to render a judgment under the circumstances? The general rule as to the power of the trial court in an action of an equitable nature is stated in 21 C. J. 661, thus:
“The power is conferred, and the duty is imposed upon a court of equity, which has acquired jurisdiction, to consider and determine all the rights and claims of the parties relating to the subject matter, and to enter a decree that will finally determine them, to the end that a multiplicity of suits may be avoided and litigation may cease.”
(See, also, 1 C. J. S. 666.)
An application of the rule was made in Martin v. Martin, 44 Kan. 295, 297, 24 Pac. 418, where it was said:
“It is a well-settled principle of equity jurisprudence that where the court has all the parties before it, it will adjudicate upon all the rights of the parties connected with the suit, so far as it can, so as to avoid a multiplicity of suits. (Seibert v. Thompson, 8 Kan. 65.) Courts of equity may adjust their decrees so as to meet most, if not all, the exigencies which may arise; and they may vary, qualify, restrain and model the remedy so as to suit it to the mutual and adverse claims controlling equities, and the real and substantial rights of the parties. (1 Story’s Eq. Jur., § 28.)
“The court below, having acquired jurisdiction of the parties and the subject-matter of the suit, had the inherent power to make all necessary orders, decrees and judgments, so as to settle the matters in controversy, and thus prevent litigation. Where a court of equity obtains jurisdiction of a suit for the purpose of granting some distinctively equitable relief, and the special relief prayed for is not practicable, the court may retain the cause, decide all the issues involved, and may decree the payment of mere compensatory damages. (1 Pom. Eq. Jur., § 237, and authorities there cited.)” (p. 297.)
And in Madden v. Glathart, 115 Kan. 796, 800, 224 Pac. 910, is the following statement:
“In the early case of Kimball et al. v. Connors Starks et al., 3 Kan. 414, 430, it was said in substance: The spirit of the code requires that so far as possible all controversies concerning a particular subject matter shall be concluded in one proceeding, and it is made the duty of the court to have all appearing to be interested therein made parties, to the end that their rights may be adjudicated. All parties in interest being present, the power of the court to render such judgment as the facts may require, under the pleading, is plenary. The old systems of practice are by the code abolished; it furnishes facilities in the ‘civil action’ for all that could be accomplished by the former system. A decree or a judgment or a compound of both may be rendered therein.” (p. 800.)
We think the allegations of the answers that appellant had received more than her pro-rata share from operation of the leasehold, and that she should account for the excess cannot be said to be merely informative, and not subject to inquiry by the trial court, as contended by her, nor that Brinkerhoff v. Bank, 109 Kan. 700, 205 Pac. 779, and Baird v. Bureman, 138 Kan. 381, 26 P. 2d 272, relied upon by her, support such a contention.
Although there is some discussion as to the evidence offered at the trial to determine the amount of the judgment, we shah not comment thereon, for that is beyond the purview of the motion, from the ruling on which the appeal arises. In any event, there is no contention by appellant that if the judgment might properly have been' rendered, that it was for a wrong amount.
We are of the opinion that the petition properly charged appellant with having an interest in the subject matter (Seaton v. Escher, 86 Kan. 679, 121 Pac. 907), and that the answers demanded of her that she account concerning the leasehold interest involved. Even if such pleadings might have been, subject to motion to make definite and certain, they at least made a prima jade showing of a right to an accounting. With such pleadings on file, appellant was served with summons and permitted judgment to be taken against her by default. She may not now say the judgment was void as being outside the issues presented. (See G. S. 1935, 60-3109, Royse v. Grage, 138 Kan. 779, 28 P. 2d 732.)
The ruling of the trial court denying appellant’s motion to have the judgment vacated is affirmed.
Allen, J., dissents. | [
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The opinion of the court was delivered by
AlleN, J.:
The Coffey County Rural Electric Cooperative Association (hereinafter referred to as the rural electric) filed for approval with the state corporation commission plans, specifications and maps showing the location of a proposed power line. A hearing was had on the application, and thereafter on the petition of the Central Kansas Telephone Company, Inc. (hereinafter referred to as the telephone company), a rehearing was granted by the commission. Testimony was taken, the commission made' findings of fact, and duly entered an order approving the application of the rural electric — the construction to be in accordance with the rules of the commission set forth in docket No. 1944. The telephone company appealed from the order of the commission to the district court of Coffey county. Upon the trial in the district' court a judgment was entered holding the order of the commission was unlawful and remanding the case to the commission with directions “to promulgate reasonable rules and regulations covering inductive coordination and thereafter reconsider the application of appellee in the light of regulations covering inductive coordination.” This appeal is from the order and judgment of the district court so entered.
The commission found that the rural electric was incorporated under the laws of Kansas for the purpose of furnishing electric energy to its stockholder members; that the construction of its facilities is financed by the United States through the Rural Electrification Administration; that the United States has a first mortgage on the property of the company to secure the cost of construction, and that the proposed lines of the rural electric will run along the highways of the state upon which are located lines of the telephone company. The telephone lines are grounded lines and will give service substantially equal to that given on metallic circuits unless there is electric interference from some source. It was further found that the lines of the rural electric if constructed according to the plans, specifications and maps will cause inductive interference with the service of the telephone company, and will materially impair such service and may render the telephone lines noncommercial; whether it will do so cannot be determined with certainty prior to the energizing of the power lines, but it is probable that it will do so. It was found that if the telephone lines which parallel the power lines are metallicized, the inductive interference will be greatly reduced if not entirely eliminated; that the expense of metallieizing the telephone lines will amount to about |7,000, and that it is not the policy of the Rural Electrification Administration to furnish money for that purpose.
Our statute G. S. 1935, 66-183, provides:
“All public utilities owning or operating wires for the transmission of telegraph or telephone messages or for the transmission of electricity upon, along, or across the streets, highways or public places in this state are required to so use, string and maintain such wires as to avoid unreasonable injury or interference from the wires of other utilities and to avoid unreasonable injury to and interference with the wires of other utilities, and the public utilities commission is given the power, and it is hereby made its duty, to prescribe reasonable rules and regulations with respect to the stringing and maintaining of wires in all cases whel'e there is danger or possibility of unreasonable interference with or damage to the wires or service of one utility by those of another utility. . . .”
After quoting sections 66-183 and 66-184, the commission, in its findings, states:
“The question thus presented is: Does the commission have the power under the statutes quoted to refuse the approval of the plans of a power company for the construction of a transmission line across and,along the highways of the state when the proposal is to construct the line in such manner that it will cause inductive interference to an extent that it will render grounded rural telephone lines constructed thereon noncommercial? . . .
“The commission is impressed with the argument of the protestants based upon the equities in the case, but it is reluctant to hold that the words ‘or service’ in the statutory provision just quoted are sufficient to confer upon the commission authority to deny the application on account thereof). No one can study the provisions of the statute involved with any feeling of assurance at the end that he has chosen the right path. There are few precepts to guide the commission. All the more, in this uncertainty, the commission is impelled to the belief that, until the courts have determined the matter, the commission should not assume the power. The commission holds as a matter of law that it may not withhold approval of the plans of the applicant for the reasons urged by the protestants.”
On appeal to the district court it was contended that the order of the commission was unreasonable and unlawful. The district court, in a carefully written opinion in disposing of the question as to whether the order was unreasonable, stated that “the decision of the commission as disclosed by the order is not so wide of the mark as to be outside the realm of fair debate, and therefore this court has no right to nullify the order on the ground that it was unreasonable.”
The court ruled:
“The order of the commission is set aside as unlawful and case is remanded to commission with direction to promulgate reasonable rules and regulations covering inductive coordination and thereafter reconsider the application of appellee in the light of regulations covering inductive coordination.”
In arriving at this conclusion, the district court, in its written opinion, stated:
“Applying the foregoing rules of construction to 66-183, G. S. 1935, this court interprets the statute to mean:
“ ‘That it is the duty of the State Corporation Commission to prescribe reasonable rules and regulations with respect to the‘stringing and maintaining of wires by all public utilities owning or operating wires for the transmission of electricity or telephone messages upon, along or across the highways in this state in all cases where there is danger or possibility of unreasonable interference with or damage to the wires or service of one utility by those of another utility and with respect to the support, maintenance, repair and reconstruction thereof.
“ ‘That the language “unreasonable interference with or damage to the service of one utility by the electrical wires of another utility,” is broad enough to cover and does cover “inductive interference” caused by the maintenance of an electrical transmission line paralleling the telephone lines upon, along or across public highways in this state.
“ ‘While the telephone company has no exclusive right of occupancy to the highways under its franchise yet, appellee must so construct its electric transmission lines, under rules promulgated by the commission, that no unreasonable inductive interference to service of telephone company will be caused, if that can be done within the bounds of reasonable regulations.
“ ‘In case the interference may be avoided by installation of- devices or other means with reasonable expense, it is the duty of the later company to adopt such means as the commission may direct, for the service of telephone customers is just as important as electric service is to electricity customers and it is just as logical to require the use of these devices by appellee on its lines as it is to require the telephone company to do so at its own expense, as following, either line of reasoning it will mean added expense to the consumers of utility service.
“ ‘However, under any line of reasoning it is the commission’s duty, in the first instant, to adopt regulations that will avoid unreasonable inductive interference if it is reasonably possible to do so.
“ 'Upon oral argument before the court, counsel for all parties interested in this appeal stated that the wire stringing rules promulgated by the State Corporation Commission, pursuant to the statute, and as disclosed by docket 1944 of the commission, which the court has examined, did not cover, and do not now cover “inductive interference” but merely physical interference. . . .
“ ‘It must be here noted it is not a question of the power of the commission to refuse to approve the application of appellee, but rather the power of the commission to regulate by rule interference with the service of one utility by the wires of another utility, caused by inductive interference or otherwise. . . .
“ ‘The findings of the commission which are accepted by the court, by agreement of counsel, as the facts of the case, show further that the lines of the appellee, as proposed to be constructed, will cause “inductive interferencé” to such an extent that the telephone service may be and will likely-be rendered noncommercial, and that other lines constructed by appellee in Coffey county have destroyed the commercial value of telephone lines.
“ ‘It appearing to this court that the statute in question requires the State Corporation Commission to enact reasonable rules and regulations which would cover “inductive interference'’ and that not having been done, the commission has not followed the procedural forms prescribed by the statute (66-183, G. S. 1935) and by reason thereof the order made by the commission is unlawful.’ ”
The journal entry of the judgment recites:
“Now, on this 1st day of July, 1940, being fully advised in the premises, the court finds: That the findings of fact made by the State Corporation Commission of the state of Kansas on the 21st day of February, 1940, in the said order from which an appeal was taken by the appellant, the Central Kansas Telephone Company, Inc., are supported by substantial and competent evidence, and are reasonable.
“That the provisions of section 66-183, G. S. for 1935, authorize, empower and direct the State Corporation Commission to prescribe reasonable rules and regulations with respect to the stringing and maintaining of wire in all cases where there is danger or possibility of unreasonable interference to the service of one utility by the lines of another; that electric transmission companies are bound by the provisions of law to so construct their electric transmission lines, under rules promulgated by the commission, that no unreasonable inductive interference to service of telephone companies will be caused, if such interference can be reasonably avoided or mitigated.
“That the conclusions of law made by the said commission upon the findings of fact, herein determined to be reasonable, are unlawful in that the same erroneously conclude that the said commission has no authority to prescribe rules and regulations for the prevention of unreasonable interference with or damage to the service of telephone utilities by the lines of electric transmission utilities traversing the same highways. That in so concluding the said commission has failed to carry out the duties imposed upon it by law in regard to such unreasonable interference to service; and the court further finds that the conclusions of law made by the said commission are unlawful in that the commission has not followed the procedural forms prescribed by the statute (Sec. 66-183, G. S. for 1935) by virtue of its failure to promulgate rules and regulations with respect to the stringing and maintaining of wires in all cases where such unreasonable interference is imminent.
“That by reason of the unlawfulness of the action of the commission, the said order should be vacated and set aside insofar as the said conclusions of law are concerned.”
Did the district court err in holding the order of the commission was unlawful?
Under our statute G. S. 1935, 66-183, the commission “is given the power, and it is hereby made its duty, to prescribe reasonable rules and regulations with respect to the stringing and maintaining of wires in all cases where there is danger or possibility of unreasonable interference with or damage to the wires or service of one utility by those of another utility. . . .” The trial court held this language is broad enough to cover inductive interference caused by the maintenance of an electrical transmission line paralleling the telephone lines upon, along or across public highways in this state.
In all cases where there is danger or possibility of unreasonable interference with or damage to the wires or service of one utility by those of another utility not only is the power conferred, but a duty is imposed upon the commission to prescribe reasonable rules and regulations with respect to the stringing of wires on and along the highways. The duty imposed is imperative. While the findings of the commission recite that the proposed lines of the rural electric will be constructed in accordance with the rules of the commission as published in docket No. 1944, it does not state the rules as promulgated cover the matter of unreasonable interference with the “service” of one utility by another utility that may result from the stringing of wires upon, along or across the highways of the state. We agree with the conclusion of the district court that interference of the “service” as used in the statute is broad enough to include inductive interference. Because the rules were not formulated on that question as provided by the statute, the district court held the order of the commission was unlawful. In that ruling we concur. We think it clear the mandate of the statute was not followed. We think the rules as to inductive interference should be formulated before a lawful order on the application of the rural electric could be entered. Should such rules be formulated as contemplated by the statute, and the application should thereafter be presented, we, of course, do not intimate the nature of the ruling or order of the commission that should be made thereon — that is a duty imposed on the commission.
The decision in this case neither involves nor implies any determination of the question of whether a telephone company which has operated what is ordinarily, called a grounded system has thereby acquired any vested right in such use of the earth as part of the circuit, or is entitled to any superior or prior right by virtue of such prior use. No question is now before us as to whether the power line companies should be required to bear part or all of the cost of me-tallicizing present grounded telephone systems in ease other means of preventing inductive interference prove ineffective, nor whether the power lines should be required to install devices in addition to those now required in order to prevent injury to the telephone service. Such administrative questions are not raised by this proceeding. We are in no way here determining how far the commission may constitutionally go nor assuming to say how far it should go, in performing its administrative duties, in relation to such use of the earth in connection with the problem of inductive interference. We are simply holding, with the trial court, that under the statute the commission has full authority to deal with problems of service which include the problem of inductive interference, and that it has both the power and the duty to adopt and promulgate reasonable rules and regulations relative thereto. The commission itself does not contend that its present general rules and regulations which make reference, largely descriptive in character, to inductive interference, deal adequately with the subject. On the contrary, it was the view of the commission that it was without power to adopt rules and regulations dealing fully with that problem. If the commission had said that its present rules and regulations are as specific and go as far as it is practicable to go, either from a scientific or a practical standpoint, for the purpose of preventing or minimizing inductive interference, a different situation would be here presented. That, however, is not the commission’s position. Its interpretation of the statute is that it is without power to adopt rules and regulations which fully meet the situation. In upholding the opinion of the trial court that the commission has not correctly interpreted its power under the statute, we are neither expressing nor implying what sort of regulations should be adopted with reference to the subject, or otherwise assuming to determine its administrative action.
The judgment is affirmed.
Wedell, J., concurs in the result. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an injunction suit. Defendant’s demurrer to plaintiff’s petition was sustained, and plaintiff appeals.
At the outset of this appeal we are confronted with the contention of appellee that the real question involved in the injunction suit has become moot and that the appeal should be dismissed. If the real issue is now moot we, of course, will not entertain the appeal. The general nature of the action and developments subsequent to its filing may be briefly stated as follows:
The suit was filed in the district court of Sedgwick county. The plaintiff, The Dickey Oil Company (appellant), is a corporation with its principal office located at Wichita, Kan. The defendant, Wakefield (appellee), also resides in Sedgwick county. Personal sérvice of summons was had on defendant in Sedgwick county. Plaintiff and defendant are owners and operators of producing oil wells on adjoining leases in Ellis county. The wells of plaintiff and defendant are producing oil from the same formation or common reservoir. The state corporation commission, acting pursuant to statute and in order to provide for ratable taking of oil within pools, had issued orders, rules and regulations specifying the percentage of the potential capacity which the various prorating wells were permitted to produce. Defendant overproduced his wells in violation of such orders while plaintiff was complying with such regulations. It was claimed defendant was draining the oil from plaintiff’s premises and that plaintiff was suffering irreparable loss and damage and would continue to suffer such loss and damage unless defendant was restrained and enjoined from violating the rules of the commission. It was alleged plaintiff had no plain,, adequate and complete remedy at law. The petition also alleged the commission had promulgated its rule 113, which provided:
“Wells or leases which have produced in excess of their allowable for any allowable period shall be closed until such overproduction has been equalized, unless otherwise ordered by the commission.”
It was further alleged defendant had at no time shut down his wells until overproduction was equalized and that appellee had obtained no special order from the commission permitting him to continue to operate his wells.
The extent or duration of the injunction sought requires notice. Appellant prayed that appellee be restrained and enjoined from operating his wells on the tracts described—
. . until the overproduction from said wells has been equalized in accordance with rule 113 of the Kansas Corporation Commission, and that upon hearing a temporary injunction issue against defendant so enjoining him and that upon final hearing a permanent injunction be issued against the defendant so enjoining him until said rule 113 has been fully complied with, and for costs herein and for such other and further relief as to the court may seem proper.” (Emphasis supplied.)
Pursuant to that prayer a restraining order was accordingly issued May 13, 1940, restraining and enjoining defendant from operating his wells “until the overproduction from said wells has been equalized with that of other wells in the Burnett pool in accordance with the provisions of rule 113 of the commission.” Plaintiff posted a bond running to defendant in the sum of $3,000. Defendant’s demurrer to the petition was heard and sustained on May 29, 1940. The restraining order was vacated and set aside. Appellant did not seek leave to amend and the action was dismissed, at the costs of plaintiff.
Defendant directs our attention to the fact that according to the records of the corporation commission he is not now producing and has not since January 31, 1941, produced in excess of the allowable fixed by the commission and that his production has in fact become equalized as prayed for by plaintiff. While defendant contends the demurrer was properly sustained he also contends nothing could be accomplished by a review of the ruling. In other words, defendant insists that since his production has become equalized in accordance with the rules of the commission, plaintiff now has the complete relief it sought by the injunction suit.
Plaintiff does not deny that production from defendant’s wells has now been equalized, and the records of the commission disclose the production has been equalized. The rule that this court will not consider and decide a question when it appears that any judgment it might render would be unavailing has been applied frequently and under varying circumstances. (Meyn v. Kansas City, 91 Kan. 29, 136 Pac. 898; City of Topeka v. Ritchie, 102 Kan. 384, 170 Pac. 1003; State v. Gas Co., 102 Kan. 712, 172 Pac. 713; Geinger v. Krein, 103 Kan. 176, 173 Pac. 298; White v. Atchison County, 109 Kan. 98, 197 Pac. 1092; Cromb v. Cole, 114 Kan. 171, 216 Pac. 1098; Ellis v. Landis, 118 Kan. 502, 235 Pac. 851; True v. McCoy, 119 Kan. 824, 241 Pac. 249; Citizens State Bank v. Clark, 126 Kan. 162, 266 P. 2d 932; Achenbach v. Baker, 151 Kan. 827, 101 P. 2d 937.) These are only a few of the numerous cases in which the rule has been stated.
Plaintiff contends the issue should not be regarded as moot for the reasons the question involved is one of public interest, the corporation commission is interested in knowing the nature and extent of its jurisdiction, the oil operators desire to ascertain whether a remedy is available to them in the courts under the circumstances, and that if the appeal is dismissed plaintiff may be confronted with an action for damages on the bond for the wrongful issuance of the restraining order.
We can understand that plaintiff is anxious to have the appeal decided on its merits. Defendant appears equally interested in the legal questions involved. This court likewise is interested in the legal issues presented and is tempted to consider the appeal on its merits. It must, however, be remembered this is not the only appeal in which the question of a moot issue has been or will be raised. Nor can we be unmindful of what has been said in the past upon the subject of moot issues on appeal.
The instant action is distinctly one between private litigants. The corporation commission is not a party to the action. Moreover, the rule against deciding moot issues on appeal has been applied by this court in various actions in which there was as great, or possibly greater, public interest involved than in the instant case and in which the state or public bodies were parties to the action. (See cases, supra.)
It is true that since plaintiff stood on the adverse ruling on the demurrer and did not ask leave to amend, the costs were taxed against the plaintiff. The rule is well settled that in this court appeals are not heard for the determination of costs only. (Anderson v. Cloud County, 90 Kan. 15, 17, 132 Pac. 996; Meyn v. Kansas City, supra, p. 30.)
The question of plaintiff’s possible future liability on the bond has, of course, not been adjudicated, and that issue could not be here on the instant appeal. The dismissal of this appeal on the ground the question is now moot could not constitute an adjudication of any of plaintiff’s rights other, than with respect to the injunction. In Meyn v. Kansas City, supra, this court said:
“If the judgment in this ease were of such a character that its affirmance would constitute an adjudication of any of the plaintiff’s rights other than with respect to an injunction, his appeal might be determined upon its merits on that account. (Bithulithic Paving Co. v. Highland Park, 164 Mich. 223, 129 N. W. 46.) But he sought only injunctive relief.” (p. 30.)
That is the exact situation in the instant case. The precise relief originally sought by injunction has been fully obtained. Any judgment this court might render now touching the injunctive relief sought could not make that relief any more efficient or effectual. Plaintiff now has that which it sought.
The fact a decision of this court upon the merits might be a guide to oil producers or even to the commission on future matters would not justify our entertaining a moot question, even if the commission were in fact a party to the instant action. In Ellis v. Landis, supra, it was stated:
“Obviously the case has become moot, the acts sought to be prevented having already taken place. The appellants urge that the questions of law argued should be decided ¡or the guidance of the school authorities for the future. There being no actual controversy now before the court, anything said on the subject would not amount to a judicial decision, and we but follow the usual course in such a situation in dismissing the appeal. (Meyn v. Kansas City, 91 Kan. 29, 136 Pac. 898.)” (p. 502.) (Emphasis supplied.)
Plaintiff also contends the question should not be held moot where dismissal of the appeal might result in an action, or liability, on the bond. (4 C. J. S. 1945, § 1354; Morrison v. Hess, 231 S. W. 997, 18 A. L. R. 433.) In Geinger v. Krein, 103 Kan. 176, 173 Pac. 298, it was held :
“The court will not consider the merits of an appeal from a judgment of forcible detention, rendered against a tenant claiming under a lease, after the lease has expired; and the fact that in the course of the litigation the tenant has given bond not to commit waste and to pay double value of the use, and damages, does not give him a continuing right to a decision on the merits.” (Syl.)
On the general subject of deciding mooted issues of law or fact on appeal see, also, Clewell v. School District, 115 Kan. 176, 222 Pac. 74; State, ex rel., v. Smith, 140 Kan. 461, 463, 36 P. 2d 956.
The appeal must be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Hooh, J.:
This was an action to recover on a personal bond given to secure performance of a contract to purchase a certain flour mill. Plaintiffs prevailed and defendants appeal.
The principal questions presented are whether the contract provided for a penalty or for liquidated damages in case of default; whether appellees were parties entitled to bring the action; and whether the court erred in holding that a certain “memorandum” was later merged into or superseded by another instrument, designated “contract.”
One F. P. Beck, a resident of Cloud county, died testate on January 31, 1937. In his will he directed, among other provisions, that a flour mill which he owned, known as the Simpson mill, in Cloud county, be sold by the named executrix and executor and thereby converted into money. On August 23, 1937, the executrix and executor, with the consent and approval of the probate court, entered into a contract with one Ezra Megli for the lease and purchase of the mill. Written consent to this contract was given by appellees and the other heirs. The purchase price agreed upon was $10,000. Megli was to have immediate possession, was to pay stated amounts as rental, at specified times, and on or before October 1, 1940, was to make a first payment of $2,500 on the purchase price.- The remaining payments were to be not less than $1,000 annually, with a final payment of $500 on the last year. It is unnecessary to recite provisions of the contract not involved in this review. The provision, principally in issue here, was as follows:
“If the purchaser defaults in fulfilling this contract or any part thereof, strictly according to its terms, then the vendors shall have the right to declare this contract forfeited, in which case the purchaser shall on ten days’ notice in writing surrender possession of said property, forfeiting all payments theretofore made under this contract, and said purchaser shall in addition quitclaim his rights under this contract and pay the sum of five hundred dollars ($500) to the vendors as liquidated damages, to secure the payment of which and full performance of all the other terms of this contract said purchaser agrees to furnish forthwith a bond in the penal sum of five hundred dollars ($500) with one or more good and sufficient sureties satisfactory to the vendors.”
In compliance with the above provision of the contract, a bond was executed on September 1, 1937, with appellants — Ezra Megli as principal, and George Megli and Fred Boehner as sureties. The bond was as follows:
“Know all men by these presents, that we, Ezra Megli, as principal, and Ezra Megli, and George Megli and Fred Boehner, as sureties, are held and firmly bound unto Margretha Groves Shamburg and Frederick E. Beck, jointly as executor and executrix of the will of F. P. Beck, deceased, in the sum of five hundred dollars ($500), for the payment of which well and truly to be made we hereby bind ourselves, our heirs, executors, administrators and assigns, firmly by these presents;
“The condition of this bond is that whereas the said principal and the said executrix and executor have entered into a certain contract in writing dated August 23, 1937, by the terms of which said principal has agreed to purchase certain real property, to make certain payments thereon at specified times and to do and perform other acts:
“Now, therefore, if the’ said principal shall purchase said property and pay therefor and do and perform all the terms and conditions of said contract strictly according to its terms, then this bond shall be void, otherwise to be and remain in full force and effect.”
Ezra Megli went into possession of the mill and made certain payments of rent, but made no payment upon the purchase price. The instant action to recover on the bond was filed September 9, 1939. It was brought by appellees under claim of ownership of the property as heirs and residuaiy legatees, and as assignees of the interests of other such heirs and legatees. A copy of the order of final settlement was made a part of the petition.
The petition set forth the will, the contract and bond, and alleged that Ezra Megli went into possession of the mill in September, 1937, and remained in possession and control until April 1, 1939, at which time he vacated and abandoned the property; that he made certain payments of rent — not necessary to recite here in detail — and that he was in default as to a number of rental payments and had forfeited all rights under the contract. Judgment was asked for $500, the amount fixed in the bond.
Defendants alleged in their answer that the full contract had not been set out in the petition, and that a “memorandum” agreement, dated August 23,1937 (the same date as the contract pleaded in the petition), which they submitted as part of their answer, constituted a part of the contract. It was further alleged that the execution of the contract and bond had been secured by fraud and misrepresentation ; that the bond was insufficient in law and was not in accord with the “memorandum” agreement referred to; that the bond was made payable to the executor and executrix, had not been assigned to plaintiffs and that plaintiffs had no right to maintain action on the bond; that the plaintiffs had failed to make certain repairs in accordance with the “memorandum” agreement and had otherwise failed to perform their obligations under the contract; that there was no valid consideration for the contract “in that the mill property was only suitable for junk”; and that the action was prematurely brought. -Because of such facts, as alleged, the defendant elected “to forfeit and terminate said contract and all liabilities thereunder.” In addition to a general denial, the reply contained various allegations not necessary to recite. Motions to strike certain portions of the answer, and for judgment on the opening statement and the pleadings were made and overruled.
Trial by a jury was had and verdict rendered for the plaintiffs in the sum of $500 with interest as prayed for. The jury also answered special questions as follows:
“Did the plaintiffs, or the executors, or either of them, make any representations of fact to Ezra Megli which were false and which induced him to enter into the contract? A. No.
“Did Ezra Megli examine the' mill, and the machinery and equipment, therein, before he signed the contract, and if so, how many times? A. No.
“Did the mill make good flour during the last time it was operated before Megli went into operation? A. Not all the time.
“When Ezra Megli abandoned the property on March 31, 1939, did he then intend to pay any more rental, or t.o pay any part of the purchase price? A. We don’t know.
“Did the plaintiffs and defendant, Ezra Megli, mutually agree that the payment of $500 was in full for all rent up to the first day of April, 1939? A. Yes.”
Defendants moved for judgment on the answers to the special questions notwithstanding the general verdict “for the reason that the answers to the special questions show that the plaintiffs’ cause of action was prematurely brought.” They also moved that the answer to question number 1 be set aside. The motions were overruled as was a motion for a new trial.
We first consider appellants’ contention that appellees were not parties qualified to bring action on the bond. The argument is that the bond was made to the executor and executrix who entered into the contract in compliance with the terms of the will and with the approval of the probate court, and that they alone could bring the action in the absence of formal action by the probate court transferring to appellees such rights as the executor and executrix had under the bond. We cannot agree with the argument. In the order of final settlement of the estate the probate court found that a stipulation had been entered into between all the interested devisees and legatees for distribution of the residue of the estate both real and personal. It confirmed this agreement and ordered distribution in accordance with it. Under the order the mill property went to the appellees and to two others whose interests they acquired by assignment. The estate had been closed and it is undisputed on the record that appellees are the real parties in interest as to the mill property and the contract for its sale. Their ownership in the property was subject to the sale contract. Certainly Megli could have enforced the contract as against them. Being bound by the obligations of the contract, they were entitled to enforce the vendors’ rights under the contract. The bond was given to secure performance of the contract. The trial court rightfully held that they were proper parties to maintain the action. (G. S. 1935, 60-401; 47 C. J. pp. 33-35; Crowell v. Ward, 16 Kan. 60; Mfg. Co. v. Burrows, 40 Kan. 361, 363, 19 Pac. 809; Braden v. Neal, 132 Kan. 387, 390, 295 Pac. 678; Hudson v. Barratt, 62 Kan. 137, 140, 61 Pac. 737.)
We next note appellants’ contention that the contract and bond provided for a penalty rather than for liquidated damages in case of default, that the court erred in holding otherwise, and that the verdict cannot stand because no testimony was offered tending to show the actual damages suffered by plaintiff as a result of defendants’ default. It must be kept in mind that this action is to enforce the obligation of the bond. That obligation — whether or not it be called a penalty — was to pay the sum of $500 if Megli failed to carry out his part of the contract. Under the contract he not only agreed to pay certain rentals and thereafter to make certain payments on the purchase price until full payment had been made, but in case of default in fulfilling the contract or any part of it, to surrender possession, to forfeit payments made and pay $500 “as liquidated damages.” The provision in the bond is not designated either as “penalty” or as “liquidated damages,” though a reasonable construction would seem to be that it partakes of the nature of the corresponding provision in the contract. (See Barber County Comm’rs v. Lake State Bank, 121 Kan. 223, 246 Pac. 524.) However, we are first concerned with the nature of the provision in the contract. Is it a penalty calling for proof as to the damage sustained, or liquidated damages requiring no such proof? If the contract provision be a valid agreement for liquidated damages, how can the signers of the bond escape liability to the extent of $500, no matter what the provision in the bond be called? Even if the bond obligation were to be considered a “penalty” the fact would still remain that Megli had not only defaulted in his lease and purchase of the mill, but had also defaulted in his agreement to pay $500 as liquidated damages. Obviously no proof would be necessary that ap-pellees had suffered a loss of $500 by his default in paying the $500. All of which is perhaps merely another way of saying that if the provision in the contract is valid as “liquidated damages” the bond must also be so considered.
In determining whether contractual agreements are to be treated as penalties or as liquidated damages, courts look behind the words used by the contracting parties to the facts and the nature of the transaction. The use of the terms “penalty” or “liquidated damages” in the instrument is of evidentiary value only. It is given weight and is ordinarily accepted as controlling unless the facts and circumstances impel a contrary holding. (17 C. J. pp. 938-940; 15 Am. Jur. 678; Condon v. Kemper, 47 Kan. 126, 129, 27 Pac. 829.) The instrument must be considered as a whole, and the situation of the parties, the nature of the subject matter and the circumstances surrounding its execution taken into account. There are two considerations which arc given special weight in support of a holding that a contractual provision is for liquidated damages rather than a penalty — the first is that the amount stipulated is conscionable, that it is reasonable in view of the value of the subject matter of the contract and of the probable or presumptive loss in case of breach; and the second is that the nature of the transaction is such that the amount of actual damage resulting from default would not be easily and readily determinable. (17 C. J. pp. 936-943; 15 Am. Jur. pp. 681-685; Restatement, Contracts, § 339; Owen v. Christopher, 144 Kan. 765, 771, 772, 62 P. 2d 860; Kansas City v. Industrial Gas Co., 138 Kan. 755, 761-763, 28 P. 2d 968; City of Topeka v. Industrial Gas Co., 135 Kan. 646, 653, 11 P. 2d 1034.)
Let us apply the above rule to the instant case. The contract called for payment of monthly rentals for. more than three years — ■ from September 15, 1937, to October 1, 1940. It called for the purchase, in installment payments, of the property at an agreed price of $10,000. It cannot be said that $500 was an unconscionable or unreasonable amount to be paid as damages in case of default on a contract of that magnitude. Accordingly, we find no persuasion here in the cases cited by appellants wherein the amounts stipulated by the parties as “liquidated damages” were all out of proportion to the damages to be reasonably anticipated, and were, therefore, treated by the court as “penalties” calling for proof of damage. In the second place, could it be said that damages resulting to the owners of the mill could have been easily determined with reasonable definiteness after default by the purchaser, and that therefore, the agreement should not be upheld? Obviously not, in our opinion. The situation was one clearly permitting a reasonable advance agreement as to the amount of damages. We conclude that the trial court did not err in holding that the liability of the signers of the bond was based on liquidated damages, and that the amount of damages did not have to be established.
Our next question is whether the trial court erred in holding that the written contract pleaded in the petition superseded the “memorandum” agreement pleaded in the answer. There is substantial agreement as to the circumstances connected with the signing of these two documents. The executor and executrix, the appellees and Megli met together with an attorney on August 23, 1937, and after extended discussions came to an agreement for lease and purchase. They drew up and signed on that day what was designated a “memorandum.” This memorandum agreement provided in general terms that Megli was to lease and purchase the mill, the estate was to make certain repairs, and Megli was to be permitted to make certain changes in machinery. The last paragraph of the “memorandum” was as follows:
“Ezra Megli agrees to lease said property for three years and agrees to purchase said property during said three years according to the terms of a lease which have been agreed upon and which are to be reduced to writing, and signed by all parties hereto subject only to the approval of said probate court.”
It thus appears that the memorandum itself recited that the terms of the agreement to lease and purchase had been agreed upon and would be reduced to writing. It is agreed that lack of time prevented reducing the contract fully to writing on that day. After some few days the document designated “contract” was drawn up, antedated as of August 23, 1937, signed by all parties and approved in writing by the probate court. This contract, which was approximately five times as long as the “memorandum,” recited the terms of the will relating to sale, set out in detail the terms of the lease and purchase and contained various other provisions including the provision for liquidated damages. After careful examination of the record we think that the trial court properly held that the “memorandum” signed the day the deal was made and not submitted to the probate court was subsequently merged into dr superseded by the comprehensive “contract” subsequently executed, and approved by the probate court, after written consent of all the heirs. However, even if the provisions of the “memorandum” relating to certain repairs be considered as supplementary and as a part of the whole agreement we would not be able to say, on the record before us, that the contrary holding of the trial court constituted reversible error. There was testimony that certain repairs were made by appellees as well as by Megli, and in any event, Megli took possession, paid rent and remained in possession for more than seventeen months, took no action to enforce further repairs by appellees and testified that when he abandoned the contract it was because he was making no profit out of the business.
Other contentions of appellants do not require extended attention. It is argued that if the obligation sued upon provided for liquidated damages, no action thereon could be maintained “until the entire contract had been breached,” and that the action was commenced before the first down payment upon the purchase price became due. But the contract provided for liquidated damages in case of default “in fulfilling the contract or any part of it.” Many months’ rent was unpaid when the action was begun. Appellants, however, call attention to the jury’s answer to question number 9,
“When Ezra Megli abandoned the property on March 31, 1939, did he then intend to pay any more rental, or to pay any part of the purchase price? A. We don’t know.”
What Megli’s intention was at the time he “abandoned the property on March 31, 1939,” as to making further payments is of little moment. The fact is he made no further payment, and in his answer specifically elected to terminate the contract and repudiated all liabilities thereunder.
Other contentions are sufficiently answered by what has already been said. We have examined the cases cited by the parties, but it would unduly extend this opinion to discuss them in detail. The cases amply support the views herein stated. We find no error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by the payee of a note against the makers to recover the balance due thereon after a bank, to which the payee had pledged the endorsed note as collateral security for his indebtedness to the bank, had sued the makers and obtained judgment against them in the amount the payee then owed the bank.
After the pleadings were made up defendants made application to the court for the determination of questions of law prior to trial. No final judgment has been rendered in the case. In order to present a comprehensive view of what transpired prior to the making of the findings of fact and conclusions of law, it becomes necessary to first review briefly the pleadings in the instant action which also involve the pleadings and judgment rendered in the former action on the note by the bank.
The petition in the instant action in substance alleged: On March 28, 1936, the defendants, Nettie L. Dougherty and E. L. Dougherty, for valuable consideration, executed and delivered to the plaintiff Samuel R. Anspaugh, their promissory note whereby they promised, ninety days after date, to pay to plaintiff the sum of $1,700 with interest at eight percent from maturity until paid. The note with all endorsements thereon is attached to the petition. (In one endorsement on the note the plaintiff, Samuel R. Anspaugh, acknowledged receipt of the sum of $921.77 as payment on the principal.) The note also contained the following endorsement, to wit:
“6-2, 1936. I hereby assign the within note to the State Bank of Meriden with recourse for collateral. (Signed) Samuel R. Anspaugh.”
On January 16, 1939, by judgment of the district court of Russell county, Kansas, in Case No. 5960, wherein the State Bank of Meri-den was plaintiff and Nettie L. Dougherty and E. L. Dougherty, were defendants, the State Bank of Meriden recovered a judgment against those defendants in the sum of $490, with interest at eight percent per annum from January 10,1939, in full satisfaction of any and all claims of that bank in and to the note; the bank has no further claim or interest in the note; defendants are entitled to credit upon the note in the sum of $490 as of the date of the judgment rendered in case No. 5960; copy of journal entry of judgment in case No. 5960 is attached and made a part thereof; plaintiff is now the owner and holder of the note and has been such owner and holder at all times except during the period from June 2, 1936. to January 10, 1938, during which period the defendant bank held the note as collateral security to secure the payment of the sum of $490 due the bank from this plaintiff; the note is past due and payable and no portion thereof has been paid except the payment of $921.77, which was paid by defendants July 1, 1936, and a credit of $490 on January 10th by reason of the judgment in case No. 5960; there is now due and owing from defendants the sum of $457.97, with interest at eight percent per annum from May 10, 1939.
Among the findings of the court in case No. 5960, were the following:
(a) “That the plaintiff is a holder in due course of the note sued upon herein, as to the amount which was due plaintiff from S. R. Anspaugh at the time of the trial of this action, namely $490, and that plaintiff is entitled to judgment against the defendants, Nettie L. Dougherty and E. L. Dougherty, her husband, for such amount, with interest thereon at the rate of 8% per annum from January 10, 1939.
(b) “That S. R. Anspaugh, the original payee in said note, is the owner and holder of the balance remaining due and unpaid upon said note, after crediting thereon the plaintiff’s judgment herein, in the amount of $490.”
The bank filed a verified disclaimer. Defendants filed a general demurrer to plaintiff’s petition, which was overruled.
Defendants did not stand upon the ruling on the demurrer but answered. The answer contained a general denial of all averments contained in the petition except such as were directly or indirectly admitted by the answer. In paragraph one they admitted the execution and delivery of the note to plaintiff. In paragraphs 2, 3, 4, 5 and 6 of the answer they sought affirmative relief against Anspaugh on three items on which they had sought relief in the former action brought by the bank. In the former action Anspaugh, the plaintiff in the instant case, testified but was not a party. The bank sought to have him made a party but defendants objected and their objection was sustained. The three items mentioned are referred to in the findings of fact made in the instant case and those matters need not be reiterated here.
Paragraph 7 of the answer was as follows:
7. “For further answer, these defendants allege that plaintiff endorsed and delivered said note sued upon in this action to 'the State Bank of Meriden in the year 1936; that in the year 1937 said State Bank of Meriden, with the knowledge, approval and consent of said plaintiff, filed action on said note against these defendants in the district court of Russell county, Kansas, in case No. 5960; that in its petition, said bank alleged that it was the absolute owner of said note in good faith, for value, by endorsement before maturity; that in the trial of said cause, plaintiff herein was a witness and participated therein, and was present at the same as a witness on behalf of said bank; that said suit proceeded to final judgment against these defendants in favor of said bank in the sum of $490, together with costs of said action taxed in the sum of $47.90; that said judgment has become final; that by reason of the premises, plaintiff is estopped to bring this action, and that action on the remainder, if any, unpaid upon said note is barred by the suit and judgment of the State Bank of Meriden thereon; that said note constitutes one indivisible cause of action, and that by assignment of said note to the State Bank of Meriden as aforesaid, plaintiff caused the cause of action on said note to be split and that after suit and judgment on said note by the State Bank of Meriden, further action on said note is wholly barred.”
The journal entry of judgment in case No. 5960 was attached to the answer and made a part thereof.
The prayer asked that plaintiff take nothing and that defendants have judgment on the separate items of $121.63, of $973 and $870, together with interest from certain dates.
The answer was filed August 14, 1939, and was not verified. Plaintiff filed his demurrer to the answer on September 1, 1939, one of the grounds being that the answer was not verified. A verification was attached to the answer September 14, 1939. No order of court authorizing the verification is contained in the record. Plaintiff’s demurrer was argued and overruled October 2, 1939. (The record does not disclose plaintiff objected to the verification of the answer being made out of time or without authorization.) Plaintiff also demurred on the ground the answer was insufficient to constitute a defense or to state a cause of action against the plaintiff, the court had no jurisdiction of the subject matter, several purported causes of action were improperly joined, and that each of the purported causes of action were barred prior to the time the note sued upon by plaintiff herein had come into existence. Plaintiff did not stand upon the order overruling his demurrer, but filed a reply. The reply raised the same defenses contained in the demurrer, except that it did not specifically call attention to the previous lack of verification. It denied generally all the averments contained in the answer insofar as they might be inconsistent with or contradictory to the allegations contained in the petition.
Defendants then made their application for determination of legal issues in advance of trial. The issues they sought to have determined were: (1) Whether the findings and judgment in case No. 5960, constituted a binding judgment and were res judicata of any issues involved in the instant case, and if so, what issues were held to be res judicata; (2) whether the judgment in the former case constituted a splitting of the cause of action on the note and barred the instant action.
When that application was submitted to the court all files and proceedings in case No. 5960 were offered and received in evidence. Appellant (plaintiff), advises us that when the submission was made paragraph one of the application was waived. The journal entry of judgment, which will be noted presently, would indicate that was true. After defendants made the application for a de-' termination of issues but before the trial court made its findings of fact and conclusions of law, they filed a motion for judgment on the pleadings and for judgment upon the court’s ruling upon questions of law. It does not appear the motion for judgment on the pleadings was pursued by defendants for a separate ruling or that a separate ruling was ever made upon that particular motion. No final judgment has been rendered in the instant case. The court did conclude and adjudge that the bringing of the present action constituted a splitting of the cause of action on the note and that the instant action was barred by reason of the judgment rendered in case No. 5960.
The pertinent part of the journal entry, including findings of fact and conclusions of law, was as follows:
“Thereupon, the parties appearing as aforesaid, said motion is submitted to ■the court upon the question of whether or not the judgment heretofore rendered in case No. 5960 in this court, constituted a splitting of causes of action, which would bar the plaintiff from maintaining the present action, which said motion was duly argued to the court, and after argument of counsel, the court takes said matter under advisement. ■. . .
Findings of Fact
1. “That on the 28th day of March, 1936, for a valuable consideration, the defendants, Nettie L. Dougherty and E. L. Dougherty, made, executed and delivered to Samuel R. Anspaugh, the plaintiff herein, their certain promissory note, whereby, for value received, they promised to pay to the order of plaintiff, ninety days after date, the sum of 81,700 with interest thereon at the rate of 8% per annum from maturity until paid.
2. “That on June 2, 1936, Samuel R. Anspaugh assigned said note to the State Bank of Meriden of Meriden, Kansas, as collateral security for an indebtedness then due and owing from Samuel Anspaugh to that bank.
3. “In February, 1937, the State Bank of Meriden brought an action on said note in this court against the makers of said note, being case No. 5960. In said action, the bank alleged that before the maturity of said note, and for a valuable consideration, Samuel R. Anspaugh endorsed and delivered the note to the bank, and that said bank by reason thereof, was the owner and holder of said note and an innocent purchaser thereof. Samuel R. Anspaugh, the original payee and endorser of the note, was not made a party to that suit. Defendants, Dougherty, filed their answer in -that case, No. 5960, in which they set up the same defenses by way of set off and counterclaim as are now made here. In the trial of case No. 5960, it was found that the note in question had been assigned to the bank, before maturity and in good faith, as collateral security; and that said bank was an innocent holder for value, in due course, to the extent of its lien which was found to be 8490.
4. “That in the trial of case No. 5960, which was held on January 10, 1939, Samuel R. Anspaugh appeared and testified in behalf of the plaintiff bank. At the conclusion of that trial, the court found that the two 8880 notes claimed by the defendants as a set off, were barred by the statute of limitations prior to the time the Anspaugh note came into existence; but the court found that Anspaugh was indebted to Nettie L. Dougherty in the amount of $121.63 by reason of a breach of warranty in a deed given by Samuel R. Anspaugh to Nettie L. Dougherty. The court further found that at the time of the trial of case No. 5960, Anspaugh was still indebted to the plaintiff bank in the sum of $490 and that no part of the note sued on had been paid except the sum of $921.77 which had been paid on July 1, 1936.
5. “That after the court had announced its findings of fact in case No. 5960, and before judgment was rendered therein, the defendants, Dougherty, orally claimed for the first time, that the plaintiff, the State Bank of Meriden, could not recover more than the amount which was then due the bank from Samuel R. Anspaugh, or, in other words, more than the amount of its lien on the Dougherty note.
6. “That after the introduction of evidence and the argument of counsel in case No. 5960, and after said cause had been submitted to the court for its determination, and after the court had indicated informally what its findings would be, the plaintiff, the State Bank of Meriden, made an oral application to bring in Samuel R. Anspaugh as a defendant in that action and to procure and file his answer forthwith. To this application, the defendants objected which objection was sustained by the court, and the motion to make Anspaugh a party defendant was overruled.
7. “On February 28, 1939, the court made findings of fact and conclusions of law in case No. 5960, in which it held, under the authority of State Bank v. Blevins, 46 Kan. 536, that since the Doughertys had a partial defense to the note sued on, that the plaintiff as pledgee could recover no more than the amount due it from the pledgor. Judgment was acordingly rendered in favor of the bank for the sum of $490.
8. “The court further finds that the present action is brought by the plaintiff, Samuel R. Anspaugh, against the defendants, Nettie L. Dougherty and E. L. Dougherty, to recover the balance of the $1,700 note which was the basis of the action in case No. 5960; that in this action, the State Bank of Meriden is a party defendant and has filed its voluntary appearance and disclaimer.
9. “On June 9, 1939, the defendants, Dougherty, demurred to the plaintiff’s petition on the ground that it fails to state facts sufficient to constitute a cause of action in favor of the plaintiff and against defendants, which demurrer was overruled on June 29, 1939.
10. "That thereafter, and on the 14th day of August, 1939, the defendants, Nettie L. Dougherty and E. L. Dougherty, filed their answer herein in which they admit the execution and delivery of the note sued on, and setting up by way of set off or counter claim, the same two notes of $880 each, and the same claim for breach of covenant of warranty as were set up as a defense in case No. 5960, and claiming as a further defense that the bringing of case No. 5960 by the State Bank of Meriden constituted a splitting of a cause of action, and by reason thereof the plaintiff in the present action is estopped and barred from maintaining the present suit.
Conclusions op Law
1. “The present action is brought upon the identical note which was the basis of the suit in case No. 5960, brought by the State Bank of Meriden against the defendants, Dougherty. Said note was merged in the judgment rendered in said action, No. 5960.
2. “The present action constitutes a splitting of the cause of action inherent in the Dougherty note.
3. “The defense of splitting of causes of action is raised by the answer of the defendants Dougherty in this suit. Such defense could not have been made, and would have been of no avail, in the first action brought on the note.
4. “The present action is barred under the rule forbidding the splitting of causes of action.”
Appellant (plaintiff) has appealed from the order overruling his demurrer to defendants’ answer and cross-claims and from the decision that the instant action constituted a splitting of the cause of action on the note.
Touching the ruling on plaintiff’s demurrer defendants counter with the contention that plaintiff’s demurrer to the answer was properly overruled and that plaintiff’s demurrer required a searching of the record with the result that defendants’ demurrer to the petition should have been sustained. In view of the record we do not deem it necessary to dwell upon either of the contentions touching the respective demurrers. Nor need we be concerned with defendants’ motion for judgment on the pleadings. The important issue was and is whether the instant action constituted a splitting of the cause of action on the note. That was the real issue the parties desired to have determined prior to trial. That, according to the journal entry of judgment, was the sole issue submitted to the trial court. That issue was submitted after both demurrers had been overruled and that was the only legal question the court decided. We must assume all parties, before submitting that question, had concluded an issue was joined upon that point by the pleadings, otherwise it would have been a futile gesture to submit that issue for determination before trial.
It should be remembered no final judgment has yet been rendered on the note nor on defendants’ cross-claims or either of them. The court made some findings touching the three cross-claims but no judgment has been rendered in the instant case concerning any of them. All this was, of course, in keeping with the sole legal issue submitted for determination prior to trial.
The real controversy is whether defendants’ are in a position to complain concerning the splitting of the cause of action on the note. In the statement of facts we quoted certain findings in the former action which clearly disclosed that the trial court, in that action, found the bank to be the holder in due course of the note sued upon only to the extent of $490, the amount of its lien on the instant note and that Anspaugh (the present plaintiff), was the owner and holder of the balance remaining due and unpaid above the amount of $490, which $490 the court had credited as payment upon the note. Defendants 'contend they do not deny Anspaugh i§ the owner and holder of the balance remaining due upon the note but merely contend that Anspaugh cannot enforce payment of the balance in a second action on the note. It is somewhat difficult to ignore what obyiously must have been the intention of the trial court in that action. Anspaugh was not a party to that action. Had the trial court intended Anspaugh should have no right to recover the balance due in another action then that part of the judgment which decreed that Anspaugh was the owner and holder of the balance due on the note, constituted a useless and futile gesture. The trial court was confronted with the fact that defendants objected to bringing Anspaugh into that action. It appears the court intended to render a judgment for the benefit of a third party. Defendants were parties to that action and have not appealed from the judgment. We need, however, not determine whether defendants are bound by that judgment. Assuming for the moment defendants are correct in their contention that such judgment did not give Anspaugh the right to enforce the balance of the note against them, what is the effect of defendants’ conduct in successfully resisting the attempt to make Anspaugh a party to that action? Had defendants permitted Anspaugh to be brought into that action all rights in the cause of action on the note might have been litigated' in a single suit and the rights of defendants against Anspaugh also might have been completely determined in that single action. It is also well to note that defendants might have insisted at the beginning of the former action that Anspaugh was a proper party to that action in order that all issues between all the parties might be determined in a single action. They asserted claims in that action against Anspaugh. Defendants contend they did not know when the former action was instituted, that the bank did not claim to be the owner and holder of the entire interest in the note. They must have known before the action was instituted, from letters addressed to them by the bank, that the bank held the instant note as collateral for the debt of Anspaugh. In the second letter the bank specifically advised defendants that Anspaugh was indebted to it in the sum of $475 for which their note was pledged as collateral and that the bank wanted Anspaugh’s note paid and that if it was not paid by défendants, the bank would bring suit on the instant note. Moreover, defendants had definite knowledge from the plain en dorsement on the note itself when the former action was first filed that the bank held their note only as collateral. To be sure, the bank was a holder of the note in due course just as it had pleaded, but for what purpose? The note was the best evidence and the endorsement on the note plainly said “I hereby assign the within note to the State Bank of Meriden with recourse for collateral. (Signed) Samuel R. Anspaugh.” The trial' court in the former action expressly found the note had been assigned to the bank before maturity and in good faith as collateral security and that the bank was an innocent holder for value, in due course, to the extent of its lien in the sum of $490. (Finding 3.) In view of all the facts defendants cannot well be heard to say they did not know the bank held their note as collateral. The record, all too clearly, indicates they did know that fact. The record also discloses it was actually their contention in the former action that the bank held the note only as collateral and could recover against them only the amount for which Anspaugh had pledged their note as security. They, however, permitted that lawsuit to proceed almost to judgment and then for the first time made known their own position that the bank could recover only the amount of its claim against Anspaugh, which was $490, including interest. (Finding 5.) They also then knew the court intended to hold they had a valid counterclaim on the note against Anspaugh on a breach of warranty in the sum of $121.63 with interest. (Journal entry of judgment in former case and Findings 5 and 6, in instant case.) It would seem the court must have had the counterclaim in mind when it provided that Anspaugh was the owner and holder of the instant note for the balance due and owing on the note after crediting the judgment of the bank in the sum of $490. Manifestly, defendants must have concluded if they could keep Anspaugh out of that lawsuit he would not be able to collect the balance on the note because another suit would involve a splitting of the cause of action and that they could then sue and recover from Anspaugh the item of $121.63. In any event defendants succeeded in keeping Anspaugh out of that action and thereby prevented him, in that action, from asserting his rights against them for the balance due on the note. They not only invited but procured the splitting of the cause of action. They should not be permitted to profit by that conduct. The doctrine against splitting a cause of action is designed for the protection of defendants and not to give them an unjust advantage. Its objéct is to prevent a multiplicity of suits. (Coal Co. v. Brick Co., 52 Kan. 747, 35 Pac. 810; First Nat’l Bank v. Schruben, 125 Kan. 417, 422, 265 Pac. 53; Krueger v. Schlemeyer, 145 Kan. 469, 476, 66 P. 2d 395; 1 C. J. S., Actions, § 102 [c].) But a defendant may agree to the splitting of a cause of action or be may waive the right to insist upon the rule forbidding the splitting of a cause of action. (1 Am. Jur., Actions, § 101; 1 C. J. S., Actions, § 102 [g]; Louisville Bridge v. L. & N. R. R. Co. et al., 116 Ky. 258.)
Defendants direct our attention to the well-established rule that a cause of action may not be split (State Bank v. Blevins, 46 Kan. 536, 26 Pac. 1044; First Nat’l Bank v. Schruben, supra), and that a note is ordinarily merged in a judgment rendered thereon (Price v. Bank, 62 Kan. 735, 64 Pac. 637; First Nat’l Bank v. Schruben, supra). There is no doubt concerning those general principles. Those cases do not, nor do any other cases cited, hold that a defendant may waive or procure the splitting of a cause of action, and thereafter adopt an inconsistent position by invoking the doctrine against splitting and thus obtain an unjust advantage by avoiding liability on an existing debt.
Defendants next argue the question of waiver was one of fact and that the trial court has resolved the fact in their favor. The trial court did not find there was no waiver, and if it had, the finding could not be sustained. It concluded, as a matter of law, there was a splitting of the cause of action. The record compels us to say the splitting could and would have been avoided except for the conduct of defendants. To be sure the bank might have made Anspaugh a party defendant when the former action was first filed. It did, however, before judgment was rendered ask that Anspaugh be made a party defendant. The request was successfully resisted by defendants. They contend it would have occasioned inconvenience to have permitted Anspaugh to be brought into the action at that stage of the trial and would have required a retrial or at least a retrial of a portion of the case. Obviously it would not have caused more, if as much, inconvenience to defendants as has the instant case, together with an appeal to this court prior to the trial of the instant action on its merits.
Defendants contend the bank deliberately failed to make Ans-paugh a party when it filed the former action in order that it might recover the full amount of the note free from defenses they had against Anspaugh. We have preyiously discussed the subject of the bank’s rights in and to the note. In answer to the last contention, however, it is sufficient to say if such was the original intention of the bank that intention was completely defeated by reason of the limited amount the bank was permitted to recover on the note. Furthermore, if defendants had not succeeded in keeping Anspaugh out of the former action they might have asserted every defense they had on the note against Anspaugh and every proper counterclaim or setoff.
The journal entry of judgment in the former action does not disclose the note was entirely merged in judgment. The note was not canceled and the judgment made Anspaugh the owner and holder of the balance due on the note in excess of the bank’s lien thereon in the sum of $490. Defendants urge that judgment was not binding on Anspaugh because he was not a party to the action. The contention does not reach the mark on the subject of merger. Defendants and the bank were parties to the action and the bank was not permitted to merge the entire note in judgment but was permitted to merge only $490 thereof in judgment. The entire note might and would have been merged in judgment in the single action except for the insistence of defendants which kept Anspaugh out of that action.
The judgment in the instant case, that Anspaugh cannot maintain an action on the balance due on the note, is reversed and the cause is remanded to the district court for trial. | [
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The opinion of the court was delivered by
Allen, J.:
This is an action on an accident and health policy of insurance. From a judgment in favor of plaintiff defendant appeals.'
The policy was-issued August 12, 1938. The petition alleged that plaintiff was on the 14th day of August, 1938, working as inspector for the United States government in an engineering department near Elaine, Ark.; that while so working he fell into a stump hole and sustained serious injuries, and that he has been totally disabled from doing any work since the date of his injuries.
The plaintiff made a written application for the policy. The following questions and answers are material:
“7. Are you crippled or deformed in any way? No. Have you any impairment of sight? No. Hearing? No. Have you ever been ruptured? No.
“8. Are you in sound condition mentally and physically? Yes. Have you ever had goiter? No. Are you subject to asthma? No. Are you subject to hay fever? No.
“9. Have you ever had any disease of the stomach? No. . . . Bowels? No.
“9B. Have you ever had any of the following? . . . Rheumatism? No.
“10. What medical attendance have you had in the past ten years and what was the cause and date? None. Name and address of attending physician?
“11. Have you received accident or sickness indemnity? When and for what? From what organization and what amounts? None.
“12. What accident or sickness insurance have jmu? None.
“18. Do you agree that the -falsity of any answer in this application for a policy shall bar the right to recover thereunder if such answer is made with intent to deceive or materially affects either the acceptance of the risk or the hazard assumed bj' the company; and that no contract of insurance shall be in force until the policy is actually issued by the Home Office at Des Moines, Iowa? A. Yes.”
Defendant in its answer alleged;
“6. That the said plaintiff in utter disregard of the facts in said written application, represented and stated, that he had never suffered any injury, disease, or sickness, as set out by his answers to paragraph 7, 8, 9A, 9B, and 9C, and the questions therein contained, and that said answers thereto were in truth and in fact, false and untrue, and that at the time of the making thereof by the said plaintiff, known to be false and untrue, in this: That the said plaintiff had suffered sickness, injury and ill health for many years prior to the date of said application, and was at said time in poor health and suffering- injury, and for which he had received treatment in United States Veterans’ hospitals, and had received compensation from the United States therefor and was and had been prior to said date an applicant for veterans’ compensation for such condition of health and body. That said false and untrue answers to said questions as aforesaid materially affected the assumption of the risk and hazard assumed by the defendant, and that had the said plaintiff truthfully and correctly answered such questions, that then and in that event, he would not have been eligible to have received such policy or to have been, nor would have been insured by the said defendant.”
The case was tried to a jury and answers to special questions were returned, as follows:
“1. Was the policy of insurance sued upon herein issued by the defendant upon the application signed the plaintiff? A. Yes.
“2. If you answer question No. 1 in the affirmative, then state whether or not such application contained the following question and answer: ‘What medical attendance have you had in the past ten years, and what was the cause and date?’ ‘None.’ A. Yes.
“3. If you answer question No. 1 in the affirmative, state whether or no+such application contained the following question and answer: ‘Have you received accident or sick indemnity? When and for what?’ ‘None.’ A. Yes, this man had a leg injury, but was recovered. This was discussed with the insurance agent and the agent thought it not necessary to answer in affirmative.
“4. If you answer question No. 1 in the affirmative, state whether or not such application contained the following question and answer: ‘What medical attendance have you had in the past ten years, and what- was the cause and date?’ ‘None.’ A. Yes.
“5. Was the policy in question issued by the defendant in reliance upon the answers made to the questions in the application of the plaintiff for such policy? A. Yes.
“6. Did the plaintiff receive any medical treatment during the 10-years period, prior to August 9, 1938? A. Yes, admitted leg injury which agent knew of.
“7. If you answer question No. 6 in the affirmative, then state when and where. A. Yes. Doctor Garlinghouse, Iola, Kan., 1937.
“8. State whether or not the plaintiff received an injury during the year 1937 while he was in the employment of the McIntyre & Travis Oil Company. A. Yes.
“9. If you answer question No. 8 in the affirmative, then state what was the nature of said injury. A. Leg injury.
“10. State whether or not the plaintiff received accident indemnity and compensation for such injury. A. Yes.
“11. State whether or not the plaintiff, within the 10-year period prior to the 9th day of August, 1938, received compensation from the United States government for alleged disability and injury. A. No.
“12. State whether or not the plaintiff received medical examination and treatment at the U. S. Veterans’ Hospital at Hines, Ill., within the 10 years prior to August 9, 1938. A. No.”
On motion the answers to questions 11 and 12 were set aside. The record shows the following:
“Question 11, to wit: ‘No’ was not sustained by the evidence and was contrary thereto, and should be set aside, and that there should be substituted by the court for such answer ‘No’ so set aside the following answer, ‘Received compensation for alleged disability only.’
“Question 12, to wit: ‘No’ was not sustained by the evidence and was contrary thereto, and should be set aside, and that there should be substituted by the court for such answer ‘No, so set aside the following answer, ‘Plaintiff received medical examination at such hospital but not treatment.’ ”
Various errors are assigned.
Our statute G. S. 1935, 40-418, provides:
“No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable.”
This statute applies to health and accident policies (Becker v. Surety Co., 105 Kan. 99, 181 Pac. 549) and, of course, must be read into the policy sued on in this action.
The statute specifies that no misrepresentation made in obtaining the policy shall be deemed material or render the policy void unless the matter misrepresented shall have actually contributed to injury.
What matters were misrepresented? First, that plaintiff received a foot injury in 1937 which was not set forth in the application.
In answer to special question three, the jury found that the matter of the leg injury was discussed with the insurance agent and the agent thought it not necessary to answer in the affirmative. This finding was supported by the testimony of the plaintiff and the agent Tholen. As the agent was advised of the injury, it could not be said the answer in the application was made with the intention to deceive the company.
The evidence showed that plaintiff had not been under the care of a physician since 1920, except for the injury above mentioned. He had been in the government hospital for observation but had received no medical treatment. While the substituted answer of the trial judge to answers 11 and 12 cannot be accepted as findings of fact by the jury, we cannot ignore the fact that the evidence supports the suggested amendments.
While it is not contended that there is any causal connection between the stomach trouble of plaintiff which started in 1920 (and for which he continued to receive compensation) and his injury received by falling into fhe stump bole in 1938, the question remains whether his answers to the application questions numbers 11 and 12 were calculated to deceive the defendant. Those questions appear to apply to accident and sickness insurance. But assuming they were broad enough to include the payments received from the government, we are not prepared to say the answers were intended to deceive the company.
Did the answers affect the acceptance of the risk or the hazard assumed by the defendant company? While this issue was pleaded in the answer of defendant above quoted, no testimony was offered by the defendant company. Although the claim manager of the company testified in the case, he did not testify on this issue. It is therefore a matter of speculation whether different answers would have caused a rejection of the application.
Defendant asserts certain instructions did not correctly define the law1 applicable to the case. It would serve no useful purpose to set out the instructions in this opinion. We have examined the objections raised and find no error in instructions given by the court nor in refusing the instructions offered by defendant.
As we find1 no error in the record the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
AlleN, J.:
This was an action in ejectment. Judgment was for defendant. Plaintiff appeals.
Our statute G. S. 1935, 72-2128, provides:
“All land lying and being in and forming a part of the abandoned bed of any navigable stream in this state and lying between the meandered lines of such stream, as the same are shown by the United States survey thereof, except such lands as are claimed and occupied by and belong to the adjacent landowners as accretions, shall be surveyed and sold as hereinafter directed and the proceeds of said sales credited to the permanent school fund.”
Under section 72-2130 a duty is imposed on the auditor of state to cause such lands to be surveyed by the county surveyor of the county in which the land is situated, and the section outlines the procedure to be followed. Section 72-2131 provides a right of appeal by any person claiming an interest in the land who is dissatisfied with the survey, and directs, in case no appeal is taken, that the land be sold. Subsequent sections (72-2138, 72-2140, 72-2145) specify the procedure to be followed in making the sale, and the issuance of a patent to the purchaser.
On May 14, 1917, the county engineer of Wabaunsee county, pursuant to the order of the state auditor, made a survey of the abandoned bed of the Kansas river in that county. Under the survey the land was divided into lots designated as F to M, inclusive, and a plat of the survey was duly filed as required by the statute. The land in dispute is a part of lot K in that survey. Lot K contains about fifteen acres; the part in this controversy contains about nine acres. No appeal was taken from the survey so made.
In April, 1926, the plaintiff, at the public auction held by the county treasurer of Wabaunsee county, purchased lot K and other lands in the above survey, and in June, 1926, received a patent for the land purchased. The patent was recorded in the office of the •register of deeds of Wabaunsee county on June 12, 1926/ (The patent shows plaintiff purchased five tracts in the survey, containing in all 55.16 acres, for which he paid the sum of $8,001.75.)
At the same time the above survey was made in Wabaunsee county the county engineer of Pottawatomie county, as directed by the state auditor, made a survey of the abandoned river bed lying in that county. The land so surveyed was divided into tracts designated as lots A to E, inclusive. No appeal was taken from that survey. In May, 1926, a patent was issued to one Herman C. Hupe to lot C in the Pottawatomie county survey and was duly recorded in that county. In 1929 the patentee Hupe conveyed lot C to the defendant Nichols.
Lot C in the Pottawatomie county survey adjoins lot K in the Wabaunsee county survey on the east. Lot C contains 16.85 acres.
On May 17, 1938, a survey was called, and the county engineers of Wabaunsee and Pottawatomie counties proceeded to survey the river bed to establish the county line between lots K and C. No appeal was filed from this survey. A study of the plat of this survey discloses that the county line so established splits lot K, and leaves the nine acres here in dispute in Pottawatomie county.
On October 1, 1938, a patent from the state of Kansas to that part of lot K here in dispute was issued and delivered to the defendant Nichols. This patent was duly recorded in Pottawatomie county.
The patent under which plaintiff claims title has not been recorded in Pottawatomie county. The plaintiff was in possession of the land in question from April, 1926, until May, 1938, when defendant took possession and built a fence along the west line.
It is agreed that under all the surveys mentioned the land in dispute lies between the meander lines of the government survey of 1862.
The case was tried upon an agreed statement of facts, an outline of which is set forth above.
The patent under which plaintiff claims, dated June 8, 1926, recites:
“Whereas, H. Pessemier purchased from the county treasurer of Wabaun-see county, Kansas, according to the provisions of the act of the legislature of the state of Kansas, approved February 22d, 1864, entitled ‘An act to provide for the sale of school lands/ and acts amendatory thereof, Tracts ‘G’, ‘H’, ‘J’, ‘K’ and ‘L’, being part of the abandoned river bed of the Kaw river in sections ten (10) and fifteen (15) in township ten (10), south of the base line and of range eleven (11), east of the sixth principal meridian, Wabaunsee county, Kansas, said tracts containing in all fifty-five and sixteen one-hundredths (55.16) acres, more or less, being in accordance with the plat and field notes of the survey made on May 14th and 15th, 1917, by Paul A. Stuewe, county surveyor of Wabaunsee county, and J. F. Odie, county surveyor of Pottawatomie county. A certified copy of said plat and field notes is filed in the state land office at Topeka, said tracts being sold for eight thousand one and 75/100 ($8001.75) dollars, which said tract has been purchased by the said H. Pessemier and he has paid therefor the full amount of the purchase-money and interest, as appears from the certificate of the county clerk of Wabaunsee county, Kansas, deposited in the state land office.”
Under and by virtue of this instrument plaintiff took possession of the land and occupied the same as owner until ousted by the defendant some twelve years later. As shown by the admitted statement of facts, the land in question was a part of the abandoned bed of the river and was "between the meandered lines of such stream,” and under section 72-2128 was subject to sale by the state. It is also conceded that the state auditor, as directed by section 72-2130, called upon the county surveyors of Wabaunsee and Pottawatomie counties to survey the lands; that notice was given to all parties interested as provided by statute; that the land was appraised; that it was offered for sale at public auction; that the land in question, with other land, was bid in by the plaintiff; that the amount of the bid was paid, and that the state in due course issued and delivered to the plaintiff a patent to the lands so purchased.
On the face of these proceedings, the plaintiff became vested with a fee-simple title to such lands. As the patent, being regular in form and duly issued by the state, conveyed a prima facie title to the patentee, the burden was on the defendant to show the invalidity of the patent to plaintiff. (Richards v. Griffith, 57 Kan. 234, 45 Pac. 600.)
By what process of law was the title of plaintiff divested and transferred to the defendant? The patent under which defendant claims, contains the following statement:
“This patent is given according to the permanent survey made in May, 1938, by William H. Auchard of Manhattan, Kansas, and according to the original survey made in 1862, and corrects patent given May 14, 1926, to Herman C. Hupe covering tract ‘C’ in the northeast quarter and southwest quarter of section ten (10) and recorded in the patent record in the auditor of state office in volume A, page 57, and given according to survey of May 14-16, 1917, by J. F. Odie, county surveyor of Pottawatomie county, as this survey was shown to be illegal according to supreme court decision given in K. 121, page 511. Patent now canceled was recorded in register of deeds office, Pottawatomie county, July 7, 1926, in book 76, page 358. This patent is given to correct the description of the land patented according to the 1917 survey.”
In the case of Pessemier v. Hupe, 121 Kan. 511, 247 Pac. 435, referred to in the above patent, it was held, as stated in the syllabus:
“Our statute, R. S. 72-2128, does not authorize the state to sell land which is not in the abandoned bed of a navigable stream, between the meandered lines of such stream as shown by the United States survey thereof.”
The statement in the patent that under the decision of the supreme court in the above-cited case, the entire survey of 1917 was found to be illegal is erroneous. No such ruling was made. We said then, and we say now, that section 72-2128 does not authorize the state to sell land “not in the abandoned bed of a navigable stream, between the meandered lines of such stream as shown by the United States survey thereof.” In the case before us it is admitted that the land in question is in the abandoned bed of the river, and that it is between the meandered lines. That decision did not purport to affect the survey as to lands within the meandered lines.
The defendant argues that the survey of May 17, 1938, established the boundary line between Wabaunsee and Pottawatomie counties; that such survey left the nine acres in Pottawatomie county, and therefore the proceedings in Wabaunsee county upon which the patent to plaintiff is based were void ab initio.
While, for reasons hereinafter stated, we find it unnecessary to determine the validity of the survey of May 17, 1938, the following observations seem pertinent. Under G. S. 1935, 18-175, 18-199 and 18-201, the middle of the main channel of the Kansas river is declared to be the boundary line between Wabaunsee and Pottawatomie counties. Section 18-201 and subsequent sections set forth the procedure to be followed where a change in the boundary line of a county is proposed. While not mentioned in the briefs we assume the survey of May 17, 1938, was based on G. S. 1935, 19-1428. While the boundary line indicated in the survey of May 17, 1938, may be the true boundary line, we cannot ignore the statutes above cited, and merely suggest that there is nothing in this record to justify an inference that the boundary line fixed by the statute has been changed.
If, however, we assume that by the survey of May 17, 1938, the nine acres in question was correctly found to be in Pottawatomie county, how does the defendant acquire title thereto? No claim is made that it was embraced in the proceedings of May 14,1917, in Pottawatomie county. If it was not affected by the proceedings in either county, obviously the state has not parted with title thereto and it is now subject to survey and sale under G..S. 1935, 72-2128.
Defendant contends that he acquired title under the patent issued to him by the state on October 1,1938. The defendant has neglected to point to any statute which authorizes any state official to donate any part of the state lands to a contiguous landowner.
Moreover, defendant’s patent appears to be nothing more than an instrument given to correct the patent of May 14, 1926, to Herman C. Hupe, covering lot C. Under our state G. S. 1935, 75-2814, where a patent is “defective in form or in manner of execution” the defective patent may be canceled and a patent in proper form may be issued in lieu thereof. Under the mask of a mere instrument of correction, where is the authority to include land not in the original patent? It is clear the statute confers no such authority and the inclusion of the nine acres here in controversy invested the defendant with no title thereto. This conclusion makes it unnecessary to determine the effect of the survey of May 17,1938, which purported to establish the county line between lots K and C. As the defendant acquired no title to any part of lot K under the correction patent, he is in no position to question the title of the plaintiff.
The judgment is reversed and the cause remanded with instructions to enter judgment for the plaintiff. | [
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The opinion of the court was delivered by
Hoch, J.:
Plaintiff prevailed in an action to set aside a will on the ground of mental incompetency of the testatrix. Defendants appeal. There is also a cross-appeal by the plaintiff from the order refusing to direct the probating of a prior will. The primary question presented is whether the finding of the trial court that the testatrix was incompetent to dispose of her property is supported by substantial, competent evidence.
Brief narration of the facts will suffice. Alice M. Urbansky, testatrix of the contested will, died at her home in Perry, Jefferson county, on May 12, 1938. She had! been under the care of a doctor for five or six months, suffering with a malignancy which caused her death. On May 16, 1938, the will executed on April 14, 1938, was admitted to probate. Under its terms her property was left in five equal parts to four brothers-in-law, the Urbanskys, residents of St. Marys, Kan., and to a nephew, Leo Sample, of Chicago. The instant action to set aside the will was commenced on March 20, 1939. The plaintiff, Cameron Kunkle, was a son of the testatrix, by a former and early marriage; he was Mrs. Urbansky’s only child. He had gone away many years before and she had not heard from him for twenty or twenty-five years until a short time before her death, when he returned. In the will she made a specific reference to him, saying that she was not unmindful of him and that it was her intention not to make provisions for him, “for reasons which he will understand.”
The petition to set aside the will alleged that the testatrix, on account of the “pain, suffering, decay and disintegration occasioned by said disease” from which she was suffering was “weak, feeble, without resistance, physically and mentally” at the time the will was executed, and was “wholly incompetent to dispose of her property.” It was further alleged that the defendants — beneficiaries under the will — willfully and with intent to defraud and “to deprive those naturally and lawfully entitled to her bounty of such property,” caused the will to be prepared and to be presented to her, without giving her an opportunity to secure independent advice or have the contents of the instrument explained to her by legal counsel, and that they procured her signature by fraud and undue influence. It was further alleged in the petition that Mrs. Urbansky had executed a will in 1930 and a codicil thereto in 1931 leaving a life estate in her property to a brother, with remainders to her son, her grandchildren, and her nephew, and that as a result of the death of the brother prior to the death of the testatrix, the named beneficiaries became owners in fee simple as tenants in common of all her property.
The answer, after making general denial, alleged that the will had been drawn by Mr. Mitchener, of St. Marys, at her request and direction; that after the death of her husband, Ben Urbansky, which occurred July 14, 1926, the defendants, Urbansky brothers, had advanced to her many thousands of dollars and that she had often expressed a desire to repay them; that on February 28, 1938, she had made a will leaving all her property to her nephew but that later, for reasons recited in the answer, she had revoked the will of February 28 by the execution of the will of April 14.
No direct evidence in support of the allegations of fraud and undue influence made in the petition was introduced. An attorney who had transacted business for her in prior years, and who had been named as executor in the will made in 1930, testified that after the death of her husband she was bitter toward the Urbansky brothers in connection with certain business deals and had threatened to bring action against them but had never done so, and that she frequently said in those years that she did not want them to get any of her property. The last time he saw her was in the summer or fall of 1937. One or two other witnesses gave somewhat similar testimony. There was also testimony that some of the Urbanskys had visited and talked with Mrs. Urbansky a number of times during her illness and before the will was executed — one witness, at least, testifying that Mrs. Urbansky had asked to have them come— but there was no evidence that they prepared the will nor that any of them was present when the will was signed. The evidence was that the will was brought by Mr. Mitchener of St. Marys.
The court made a number of specific findings of fact. It is not necessary to note those which are simply narrative in character. It did not find that there was any fraud or undue influence exercised, or that any of the beneficiaries had anything to do with preparing the will or securing the signature of the testatrix. The court found that the prior wills of 1930, 1931, and February, 1938, hereinbefore referred to, as well as the will at issue, had been signed and executed by the testatrix, and that—
“11. Alice M. Urbansky was, during her lifetime, a very strong willed woman; that she was, during most of the time unfriendly to her four brothers-in-law, named as devisees in her last will and testament. That she at one time, after the death of her husband, insisted on bringing suit against them for an accounting on certain property owned jointly and located in Oklahoma; that she on several different occasions stated she was displeased with her brothers-in-law.
“12. That Alice M. Urbansky became ill in the fall of 1937, and was continually under a doctor’s care from December, 1937, ¿mtil the date of her death; that Mrs. Urbansky suffered from cancer of the intestines, from which she died on the 12 day of May, 1938; that the attending physician was one Dr. W. 0. Nelson, of Lawrence, Kansas, and who was a second cousin of deceased.
“13. That Mrs. Urbansky was given codeine daily, beginning January 12, 1938, until her death; that from January 12, 1938, to April 3, 1938, she wa.s given ty, grain at a dose and thereafter until shortly before her death % grain at a dose.
“14. That Mrs. Urbansky grew gradually weaker until her death; that old friends and acquaintances were refused admittance to her room because of her serious illness; and that on April 10th, her granddaughter was refused admittance because deceased was too weak to have company. That during her last illness, J. B. Wilson, her attorney, who had handled some of her legal business' for her, called to see her but was refused admittance for the reason that she was too ill.
“15. The evidence does not disclose that Mrs. Urbansky had any independent advice as to the legal effect of either the will of February 28, 1938, or the will of April 14, 1938.”
The court then entered three conclusions of law as follows:
“1. That the said Alice M. Urbansky did not have sufficient mental capacity to make a will, disposing of all of her property, on the 14th day of April, 1938.
“2. That the will of Alice M. Urbansky, made on the 14th day of April, 1938, and admitted to probate on the 16fch day of May, 1938, in the Probate Court of Jefferson county, Kansas, should be set aside and held for naught; that the plaintiff should recover his costs herein.
“3. That the property of the said Alice M. Urbansky should descend as though the said Alice M. Urbansky had died intestate.”
Upon the motion of the plaintiff, conclusion of law number one was changed to a finding of fact.
It will be noted that the court made no finding of fact indicating the mental condition of the testatrix other than the finding that she did not have sufficient mental capacity to make a will. Appellants urge that this is a conclusion and not a finding of fact. But whatever it may be called, the record has been carefully examined to see what evidence supports it.
Certainly the fact — as found by the court — that the testatrix had on several occasions stated that she was displeased with her brothers-in-law is not a finding which in itself can justify the setting aside of a 'will in which they are made beneficiaries. The same must be said for the finding that at one time several years prior thereto she had contemplated a suit against them for an accounting of property owned jointly, which suit never was brought. In making this observation we are considering only the plaintiff’s evidence and disregarding defendants’ evidence which tends to create a different impression concerning her attitude toward the Urbanskys.
What then is plaintiff’s evidence which is said to support the finding of mental incompetency? We do not find positive testimony by any witness to the effect that she was not in possession of her mental faculties, with understanding of what she was doing. Doctor Nelson, who attended her during the months of her illness, and who was a witness for the plaintiff, was asked: “At that time, in your opinion was she mentally able to dispose of her property?” To which he answered: “I don’t think I want to say yes or no to that question. There might have been times she was not; the times I saw her I would think she was able to do business. She took codeine . . . and she might be out from under the influence of it and an hour after taking it she might be the other way.” He further testified that she was quite alert, her mind was quite good considering the condition she was in, she was in full possession of her mental faculties and knew what she was doing at all times up to the last week of her life, that it might be debatable as to her being able to transact business to some extent, that she might have been in a sort of a coma the last few hours of her life. The only other witness for the plaintiff who testified as to her mental condition was Sturm, a real estate man, who testified that in December, 1937 — several months before the will was executed — he had a conversation with her at the bus station in Perry about her property, and that he tried to find out what she wanted for her property but was unable to do so, that she would not stay on the subject but was “flighty” that particular day,- and not as alert as she had been at other times. He said, however, that he “would not say that she was of unsound mind.” Certainly none of this is sufficient to support a finding that in April, 1938, the testatrix was not mentally competent to make a will. On the other hand, Helen Irvin, who stayed with Mrs. Urbansky from December 1, 1937, until her death testified that she did her own writing, wrote to her nephew right along, wrote out her grocery orders, and appeared to be of sound mind at the time the will was executed. Stella Delk, the second witness to the will, testified that Mrs. Urbansky “was very alert, her mind was bright and clear.”
Appellee stresses the fact that for some weeks prior to the death of the testatrix a number of relatives or friends were not admitted to see her when they called at the home. There is nothing unusual about that. Moreover, Doctor Nelson, plaintiff’s witness, testified that as her physician he had suggested to the nurse, probably a month or two before Mrs. Urbansky’s death, that the company be limited because she was in a good deal of pain and he thought company might disturb her.
Appellee also contends that the fact that the testatrix was given codeine in increasing doses to relieve pain and that the continued use of such a drug affects the brain and nervous system is evidence supporting the finding of incompetency. She had been given doses of one-fourth grain, which was increased to one-half grain April 18— several days after the date of the will. The doctor who gave the prescriptions and who attended her did not testify that the use of the drug had affected her mental powers.
Physical weakness, suffering, the fact of approaching death, are not in themselves sufficient to invalidate a will. It is sufficient if in spite of them the testator has sufficient mental capacity to know and understand the nature and extent of his property, has an intelligent understanding as to the disposition he desires to make of it, the persons he desires to receive it, and has the capacity to comprehend the nature of the claims to his bounty of those whom he desires to exclude from participation. It is not necessary that the testator have sufficient capacity to enter into complex contracts or to engage in intricate business transactions. (Page on Wills, 2d ed., §§ 137, 140, 163, and cases there cited; 68 C. J. 481, § 89; 485, § 93; Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701; Klose v. Collins, 137 Kan. 321, 20 P. 2d 494; Barnhill v. Miller, 114 Kan. 73, 75, 217 Pac. 274; Higbee v. Bloom, 108 Kan. 723, 733, 196 Pac. 1080; Cole v. Drum, 109 Kan. 148, 197 Pac. 1105.)
We find no substantial evidence to support a finding that the testatrix did not have the requisite mental capacity to make a will. This conclusion makes it unnecessary to consider contentions made in the cross-appeal.
The judgment must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
HoCh, J.:
This is a railroad crossing case. The husband of the appellee was killed when the car in which he was riding ran into the side of a moving passenger-train engine at a grade crossing in the city of Wichita. Appealing from the judgment against it, the railroad’s principal contention is that the collision resulted from the negligence of the deceased and the driver of the car and that upon the jury’s answers to special questions judgment should have been entered for the defendant notwithstanding the general verdict for the plaintiff.
The collision took place about 12:15 a. m. on December 4, 1938, where the Missouri Pacific tracks cross Walnut street, several blocks west of the Arkansas river and a block north of Douglas avenue, the main business street of the city. The passenger train was proceeding west on Pearl street and the car involved in the accident was going south on Walnut. The driver and owner of the car, a 1935 Chevrolet coupé, was E. L. Potter. Riding with him were Harold Byerly and Harvey A. Shepard, husband of the appellee. Shepard was seated between Potter and Byerly. The car struck the right side of the engine, described by one of plaintiff’s witnesses as “about ten feet from the front of the engine” and by the engineer and fireman as “about fourteen or fifteen feet from the pilot of the engine.” After the collision the car was lying on the sidewalk on the west side of the street.
The negligence alleged in the petition consisted of operating the train at a speed of twenty-five miles an hour contrary to a city ordinance which provides a maximum speed of fifteen miles within the city; of failing to blow a whistle or ring a bell or give other warning signal of the approach of the train; of failing to maintain sufficient warning signs at the intersection; and of failing to maintain some kind of electric bell, wigwag or other such warning de vice — the crossing having, it was alleged, “an extremely dangerous condition and situation surrounding” it.
The answer consisted of a general denial and an allegation that the deceased and the other occupants of the car were guilty of contributory negligence by their failure to stop, look and listen for trains and their failure to use proper care and caution as they approached the crossing.
The jury returned a verdict for the plaintiff in the sum of |6,625 and answered special questions as follows:
“1. If you find for the plaintiff, then state at what rate of speed (a) the automobile approached the crossing; (b) the train approached the crossing. A. (a) 18 to 20 miles per hour, (b) 15 miles per hour.
“2. If you find for the plaintiff, then state whether or not the automobile stopped before going into the train. A. No.
“4. If you find for plaintiff, then state whether or not the occupants of the automobile saw the train before it was struck. A. No.
“7. If you find for the plaintiff, then state specifically what, if any, negligence you find against the defendant. A. Failure to provide adequate warning signals.
“8. If you find for plaintiff, then state how far east of the crossing could an approaching train have been seed by the deceased—
“(a) When he was within 20 feet of the middle track. A. 2 blocks.
“(b) When he was within 25 feet of the middle track. A. 1% blocks.
“(c) When he was within 30 feet of the middle track. A. 1% blocks.
“(d) When he was within 40 feet of the middle track. A. 200 feet.
“(e) When he was within 50 feet of the middle track.' A. 106 feet.
“9. If you find for plaintiff, then state how far north of the crossing the cross-arm sign or signs could be seen by the occupants of an automobile approaching the crossing at night with headlights burning. A. 60 feet.
“10. If you find for plaintiff, then state from how far north of the crossing the railroad crossing could be seen by the occupants of an automobile who knew it was there, when approaching the crossing at night with headlights burning or by occupants of an automobile not knowing that the crossing was there when approaching the crossing at night with headlights burning. A. (a) 60 feet; (b) 30 feet.”
Brief statement of the facts will suffice. Harvey Shepard was a machinist 38 years of age who had been employed for a number of years by the Federal-Mogul Corporation at 200 North Waco street in Wichita, which is a few blocks from the scene of the collision. He had resided at 1517 South St. Francis street in Wichita for about six years and prior to that he had lived north of Douglas, on North Clark, north of Pearl street. He was familiar with the location of the Missouri Pacific tracks and had crossed them many times. On the evening of December 3, 1938, he came home from work at five o'clock and after supper he and Mr. Byerly joined Mr. Potter — a brother-in-law — at a pool hall on west Douglas, where they spent the evening playing pool. About 11:15 or 11:30 p. m. they left the pool hall, and went to the Potter car which was parked a block or so away. Potter testified that they drove out west First street and west Second street to go to his home to get some things, as he was intending to stay at the Shepard home that night. They turned south on Walnut street, which is eighty feet wide, with a paved portion thirty feet wide. Walnut is not an arterial highway. Seneca street, the first north-and-south street west of Walnut, is a through street with electrically operated flash signals.
Potter, the driver and owner of the ear, had lived in Wichita for about twenty years and worked for the same company and at the same place with Shepard. He had crossed this crossing several times and knew it was there. He testified that the window of his car was down, that he did not hear any whistles blowing or bells ringing, that he did not see the train at all and made no effort whatever to stop. He had driven an automobile about twenty-five or thirty years.
The engineer testified that the automatic engine bell had been ringing since the train left the depot a few blocks east of the scene of the accident and that he commenced blowing the whistle two blocks before reaching the crossing. The fireman gave like testimony. The engine headlights were burning' — that was the uncon-troverted testimony and there was no allegation in the petition that they were not burning. Two witnesses who were walking north on Walnut about three-quarters of a block south of the crossing testified they saw the headlight of the approaching train and heard the whistle and the bell ringing. They testified that they saw the Potter car coming from the north and that one of them remarked to the other that if the car didn’t slow down it would hit the train. They did not see the crash because they were on the south side of the train, but ran around to the north side and one of them called the ambulance. In view of the findings of the jury this and other testimony need not be narrated in detail.
The defendant’s negligence, specified, supra, by the jury was: “Failure to provide adequate warning signals.” Admittedly this refers to warning signs on the street. Under the rule frequently announced, this absolved the defendant from the other allegations of negligence contained in the petition. (Jones v. A. T. & S. F. Rly. Co., 148 Kan. 686, 692, 85 P. 2d 15, and cases therein cited; Rathbone v. Railway Co., 113 Kan. 257, 259, 214 Pac. 109; Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590.)
What then is the situation with which we must deal under the admitted facts and the answers of the jury? The west-bound train was traveling at a lawful speed of fifteen miles an hour. The whistle had been blown and the engine bell was ringing. The headlights were burning and must have been shining across the Walnut street intersection, which appellee alleges was poorly lighted — described by counsel as “almost a blackout.” The automobile, coming from the north, approached the tracks at a speed of eighteen or twenty miles an hour. The crossing signs could be seen sixty feet away. The jury found that the crossing itself — evidently referring to the tracks — could be seen sixty feet away by an occupant of the car “who knew it was there” and thirty feet away if he did not know it was there. The latter answer is difficult of logical analysis, but we accept it for what it says. Potter, the driver, testified that he knew there was a crossing there. Shepard had lived in the city many years, worked at a place a few blocks from the Walnut street intersection, and appellee, his wife, testified that she “supposed” she had been over the crossing with her husband and that she had been over other crossings on the same railroad track in west Wichita. But giving appellee the benefit of any possible doubt, we assume that the crossing track itself could only be seen by the deceased at a distance of thirty feet. However, when the auto was fifty feet from the tracks the occupants could see a train 100 feet east of the crossing and at forty feet from the tracks a train 200 feet east of the crossing could be seen. When the auto was fifty feet from the track the front of the engine had already entered the intersection. This is obvious from the fact that although the train was traveling slower than the auto, the front end of the engine was at least fifty feet from the east line of the street when the collision took place. The street is eighty feet wide and the engine was struck at least ten feet back of the front end. Had train and auto been traveling at the same rate of speed the engine would have just been entering the intersection when the auto was fifty feet from the crossing. When the auto was forty feet from the crossing the front end of the engine was seventeen to twenty feet inside the intersection — this appears from a simple mathematical calculation based on the findings of the jury. Moreover, these computations are based on an assumption, favorable to appellee, that the auto was traveling in the center rather than on the right and proper side of the street. If the auto was traveling in the right-hand lane it follows that the engine was still farther within the intersection than above indicated.
While the jury made no finding on the subject, the undisputed testimony of a police officer in the city traffic department was that under the conditions shown as to tires, condition of the pavement, etc., a car traveling at twenty miles an hour could stop in forty feet, allowing for the normal period of mental reaction before applying the brakes. And of course this computation is based on the assumption that the driver of the auto would proceed straight ahead and would not turn the steering wheel — the normal and natural thing to do — and thus greatly lessen the forward distance he would travel toward the point of collision. These evident facts conclusively show that with the engine and a large part of the train in full view when the driver was ample distance away to avoid a collision he made no effort to stop and drove his auto squarely into the side of the engine.
Whether the finding of the jury that the appellant was negligent in not providing adequate warning signs at this crossing is supported by substantial evidence we need not determine. The principal argument of the appellee in this regard is that the cross-arm warning signs were located on the wrong side of the street, the one on the north side of the track being on the east side of the street and the one on the south side of the track being on the west. While there is force in the contention that these signs should have been otherwise located, the jury found that the occupants of the car could see the cross-arm signs sixty feet north of the crossing. However, regardless of where they might be located, it does not appear how a crossing sign would have prevented the accident if the occupants did not see a slow-moving train, with headlight burning, right there before them.
Electric signals are not required by state statute at all crossings, nor in this instance had the State Highway Commission or the city of Wichita made requirement that there be one at the Walnut street crossing. (See Sheets v. Baldwin, 146 Kan. 596, 598, 73 P. 2d 37; G. S. 1935, 68-414.)
We have carefully examined all the cases cited by both appellee and appellant, as well as others, and find no authority to support recovery upon the facts shown in this case. The purpose of crossing signs or signals is to warn of approaching trains. Assuming, in harmony with the finding, that the railroad company had not provided adequate signs at the crossing, it is apparent that the proximate cause of the accident was that the driver of the auto drove his car into the side of the engine, although much of the train was in plain view, and the engine had entered the intersection at least seventeen to twenty feet while there was yet time to avoid the collision if the occupants had been looking ahead. Under such circumstances there can be no recovery. (See Bledsoe v. M.-K.-T. Rld. Co., 149 Kan. 741, 90 P. 2d 9, and cases therein cited.)
Appellee calls our attention to the case of Harwood v. Mo. Pac. Rld. Co., 118 Kan. 332, 234 Pac. 990. But in that case the jury found that the plaintiff was keeping a lookout ahead knowing that somewhere in that vicinity he would have to pass over the defendant’s tracks in order to reach his destination; that there was no crossing sign and the crossing was obscured by mud and weeds; that the engine whistle was not sounded for the crossing; that the plaintiff approached the crossing at ten miles an hour, while the train approached it at thirty-five miles an hour. Moreover, in that case the auto was struck by the train and not the train by the auto. Other cases cited by appellee are in no way persuasive here and it would needlessly extend this opinion to discuss them.
Only brief comment need be made upon the fact that the deceased, husband of the appellee, was not the driver of the auto. The rule is well established in this state that a guest or passenger in an automobile is under a duty to exercise reasonable care and precaution for his own protection, that he cannot recover damages if he fails to exercise such precaution and to give warning to the driver of an imminent danger. (Buchein v. Atchison, T. & S. F. Rly. Co., 147 Kan. 192, 75 P. 2d 280; Hooker v. Missouri Pac. Rld. Co., 134 Kan. 762, 8 P. 2d 394; Blue v. Atchison, T. & S. F. Rly. Co., 126 Kan. 635, 270 Pac. 588; Ewing v. Railroad Co., 117 Kan. 200, 206, 231 Pac. 334; Cooper v. Railway Co., 117 Kan. 703, 709, 232 Pac. 1024; Rathbone v. Railway Co., 113 Kan. 257, 259, 214 Pac. 109; Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893; Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744.) In the instant case the jury answered that “the cross-arm sign or signs” could be seen “by the occupants of an automobile” for sixty feet north of the crossing, and there is nothing in the record to indicate that the deceased could not see the engine and the train as well as could the driver. There is no testimony that either he or Byerly, the other occupant — who was not called as a witness — gave any warning in an effort to avoid the collision. Whether they were so engrossed in conversation that they were oblivious to other matters or what the explanation is would be mere speculation.
Considerations of sympathy are felt by appellate as well as by trial courts, but real as such sympathy is in the instant case for the bereaved plaintiff and her family, the conclusion is here inescapable that recovery is barred and that defendant’s motion for judgment notwithstanding the general verdict for the plaintiff should have been sustained. This conclusion makes it unnecessary to discuss the appellant’s other assignments of error.
The judgment is reversed and the case remanded with directions to enter judgment for the defendants. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action for breach of trust and for an accounting and restitution of funds alleged to have been improperly invested.
Plaintiffs, who are the beneficiaries of the trust, alleged in their petition that on April 8, 1926, one C. C. Bayless and Elma E. Bay-less, his wife, entered into a trust agreement with the defendant company whereby the latter received in trust and agreed to manage and invest and reinvest a large amount of personal property consisting of bonds, mortgages, notes, corporate stock and cash, of the aggregate value of $153,853, and to collect and distribute the income thereof from time to time to Elsie M. Cressler and Elma E. Bayless, mother and daughter, share and share alike, and later to the two children of Elma E. Bayless on the deaths of their mother and grandmother. The trust was to endure until Elma’s children should attain the ages of 25 and 45 years respectively, subject to conditions of no present concern.
The trust agreement was exhibited as part of plaintiffs’ petition. By its terms defendant was authorized—
“To purchase or substitute any such securities, for those held, issued, owned or controlled by the trustee individually, provided that no such securities shall be sold to the trust at any profit to the trustee, and after paying all proper taxes, assessments and necessary expenses, and the charges and compensation of the trustee which shall not exceed five percent of the income of the property placed in trust, to make such disposition of the trust fund and estate as is provided and set forth herein.”
The trust agreement also provided—
“That the trustee shall not charge as expenses of the trust any overhead expenses of the trustee, nor compensation to any of its officers or employees, nor any expense attendant upon the investment, collection or handling .of moneys, property or securities into which the trust property by this instrument conveyed may be turned or converted by the trustee, nor shall any commissions or compensation be charged or retained by the trustee itself other than the specific compensation based on the percentage of the income as hereinafter specified.”
By the trust agreement the trustee was obligated to keep full and complete accounts of the property and securities of the trust estate, and of its collections and disbursements; the records were to be open to inspection of the grantors and beneficiaries; and semiannual statements were to be rendered to the grantors while they lived and thereafter to the beneficiaries. The trust agreement provided that as compensation for its services—
“The trustee shall be allowed and may retain out of the income as received and collected, in full compensation for its service in performing this trust five percent of the income of the property held in trust.”
Plaintiffs alleged that defendant had breached the terms of the trust agreement in various specified particulars, viz.: that defendant had sold its own securities to the trust at a profit; that defendant had failed to account for all income, proceeds, profits and revenues of the trust estate; that defendant had charged against the trust estate certain overhead expenses of the trustee, including compensation of its officers and employees and other expenses attendant upon the handling of money, property and securities of the trust estate; that it had charged commissions and compensation other than that specified in the trust agreement, and had made improper and unauthorized investment of the trust funds; that it had failed to keep full and accurate accounts showing the condition of the trust estate and of the property and securities held in its behalf; and that after proper request defendant had failed to furnish plaintiffs with accurate information concerning the trust property and the collections and disbursements pertaining thereto, and had failed to furnish semiannual written statements to the grantors of the trust.
Plaintiffs prayed that defendant be required to replace in the trust all funds improperly invested by it in violation of the trust agreement; that all amounts improperly charged against the trust be restored to the trust estate, to wit, expenses, compensation, commissions and profits not chargeable to the trust; and that defendant resign as trustee after making full accounting and restitution. Plaintiffs also prayed for legal and equitable relief in respect to all matters in which defendant had been derelict as alleged, and for removal of the trustee and an appointment of its successor, and for other appropriate relief.
To this petition defendant filed an answer containing a general denial, an admission of the execution of the trust agreement, and its acceptance of the trust estate. Answering further, defendant alleged that the trust agreement was indefinite in its language where it provided that no securities owned by the trustee “shall be sold to the trust at any profit to the trustee,” and to clarify that language, about two months after the creation of the trust, C. C. Bayless, one of the grantors of the trust, authorized his attorney to confer with the attorney for the defendant trustee, and that they prepared a written interpretation and clarification for Bay-less to sign; and that Bayless signed it about June 16, 1926, and that the original instrument so signed had been lost, but defendant attached to its answer what it alleged was a true copy of a carbon copy of the original instrument marked exhibit “A.”
The answer further alleged that the cost of the securities it had sold to the trust sometimes exceeded the market value thereof,, and that defendant had always furnished plaintiffs with timely reports of the status and operation of the trust and of its assets, receipts and disbursements. The answer concluded with a prayer for judgment in defendant’s behalf, and for an allowance for its unusual costs and attorneys’ fees necessitated by this litigation, and defendant also prayed that it be permitted to resign as trustee and that the court appoint its successor.
Exhibit “A” attached to defendant’s answer reads:
“The undersigned, C. C. Bayless, does hereby certify, state and declare:
“That he is grantor in two declarations of trust as entered into on the 8th day of April, 1926, by and between the undersigned and wife as grantors and the Wheeler-Kelly-Hagny Trust Company as trustee; and that such trust was originated and created and covered the property of the undersigned, and the preparation of the instruments evidencing the same was supervised by him, and the clause in paragraph — , page — of such instruments which states ‘provided that no such securities shall be sold to the trust at any profit to the trustee’ meant and was intended to state that none of the securities as held, issued, owned or controlled by the trustee individually should be sold to the trust for more than market value of the same and that no profit should be realized by the trustee in the sale of its own securities to the trust over and above the market value of such securities; and that this construction is at this time placed upon such clause in the trust instruments by the undersigned, as the maker of the trust, in order to avoid any misunderstanding in the future as to the construction of such clause.
“In witness whereof, the undersigned has hereunto set his hand at Wichita, Kansas, this — day of June, 1926.
In the presence of and witnessed by:
Plaintiff filed a motion to strike out certain parts of the answer, which was sustained in part and overruled in part — following which plaintiff filed a reply denying that C. C. Bayless had ever signed any instrument of the form or content of exhibit “A” and denied that he had any authority to do so.
On these issues the cause was tried by the court without a jury. On the assumption that the original trust agreement was indefinite in its language which provided “that no . . . securities shall be sold to the trust at any profit to the trustee,” evidence was introduced showing that its terms had been written after tentative drafts had been formulated and revised by counsel for the grantors and the trustee. Touching exhibit “A,” C. C. Bayless testified that he had never signed any instrument of its purport. Defendant adduced evidence to show that exhibit “A” was a true copy of a carbon copy belatedly discovered in its files; that a diligent search had been made for the original instrument without avail. A witness for defendant testified to the circumstances leading up to the drafting of the original instrument, exhibit “A” — that soon after defendant had accepted the trust it became his duty as trust officer of defendant to invest some money belonging to the trust estate and that he had examined the trust agreement and discovered what he considered an. indefiniteness in its terms, and that the original of exhibit "A” had been drafted to clarify them. A witness for defendant testified that while he had not seen Bayless sign the original of exhibit “A” he was morally certain that Bayless had done so.
Touching the particular investments made by defendant in behalf of the trust estate, the business practice of defendant was explained to the trial court at length. In brief, as illustrative thereof, it was shown that when defendant would undertake to finance or float a proposed bond issue for a corporation engaged or proposing to engage in a hotel business, or an amusement business, or some fanning or building enterprise, defendant would buy the entire bond issue at par or other agreed price, upon condition that the corporation issuing the bonds pay to defendant some specified rate or amount of commission. Thus for the Catarina Farms Company, defendant financed a bond issue of $1,000,000 for a commission of $25,000; for the Interstate Amusement Company it financed a bond issue of $475,000 for a commission of $20,000. Other corporate loans were financed on similar terms. It was also shown and admitted that some bonds of these corporate issues were sold by the trustee to the trust estate at prices which did not take into account the very substantial commissions exacted by the trustee for its financing services. Furthermore, in fixing a cost price to be charged to the trust estate for portions of these bond issues, it was defendant’s practice to make an estimate — what it called an adjustment- — -of the costs of acquiring the bond issue, and such costs were apportioned to and charged as part of the price at which such bonds were sold to the trust estate.
Of some minor importance in this lawsuit was the fact adduced by the litigants that about two years after the creation of the trust a lawsuit had been arranged at the instance of Elsie M. Cressler, widow of the founder of the family fortune, to have her rights in this trust estate definitely adjudicated. That lawsuit was adjudicated to a conclusion defining and confirming Mrs. Cressler’s beneficial interest in the trust estate, but no intimation of the existence of such an instrument as exhibit “A” appeared in that lawsuit.
At the conclusion of the evidence plaintiffs and defendant submitted to the court proposed findings of fact. The court, however, chose to make its own; but only their controversial features need be stated here. The court found that shortly after the trust was created, defendant’s trust officer consulted the trust agreement to ascertain how he should invest $1,000 belonging to the trust estate; that he was uncertain about the meaning of the proviso “that no such securities shall be sold to the trust at any profit to the trustee”; that he took up the matter with the trust company’s attorney and that the latter and the attorney for C. C. Bayless drew up a supplemental instrument — the original of exhibit “A” — which declared that the questioned language was intended to mean—
“That none of the securities as held, issued, owned or controlled by the trustee individually should be sold to the. trust for more than the market value of the same and that no profit should be realized by the trustee in the sale of its own securities to the trust over and above the market value of such securities”;
The court further found that the original of Exhibit “A” had been lost; that diligent search had been made for it without avail, and—
“From the testimony as introduced by disinterested witnesses, and all the circumstances surrounding the transaction, the court finds that this supplemental agreement which was known as defendant’s exhibit ‘G’ (also as exhibit ‘A’) was in fact prepared and executed as a part of the original trust agreement and in construction thereof.”
Touching the character of the investments made by defendant in behalf of the trust estate, the trial court found—
“At that time they were securities generally sold on the market producing a good rate of income and at the time when prosperity was general. No complaint was made as to the securities but it was only long after subsequent events showed that some of them had become unproducing or of small value while others remained fairly good producing investments and of reasonable value.
“The trust company has carried out the terms of the trust in the supplemental agreement, ... its purchases have been at the then market value of the securities in question without the realization by the trustee of any profit in the sale of its own securities to the trust over and above the market value of such securities.”
The trial court* made three conclusions of law:
“1. Defendant has not* violated the terms of the trust.
“2. Plaintiffs are not entitled to an accounting nor to recover more than the amount actually due under the transactions.
“3. Costs of the case should be assessed against the plaintiff.”
The trial court ruled that in view of its findings and conclusions all other requested findings would serve no purpose, and judgment was entered in favor of defendant.
Plaintiffs appeal, assigning various errors. They first contend that the agreement of April 8, 1926, was not ambiguous, nor in need of clarification by an alleged supplementary agreement of the tenor of exhibit “A”; that the trust was irrevocable; that it could not be modified nor authoritatively interpreted by the assent or signature of one of the two grantors of the trust estate; nor did such supplementary agreement, if made, bind the beneficiaries of the trust.
In our statement of the case we have set out the language of the trust agreement. It is difficult, we think, to discover any indefiniteness or ambiguity in the quoted text of it. As plainly and specifically as words could make it, the declaration of trust provided that no securities belonging to or controlled by the trustee could be sold to the trust estate “at any profit to the trustee.” One compensation, and one alone, was to be allowed to the trustee for its services in managing, investing, reinvesting, safely keeping the trust property, and for disbursing the net income thereof to the beneficiaries. That compensation was not to exceed five percent of the income of the trust — the exact language of the trust agreement providing that “the charges and compensation of the trustee . . . shall not exceed five percent of the income of the property placed in trust . .
To make assurance doubly sure that such limitation of compensation for defendant’s services should not be evaded by sophistical interpretations, the trust agreement declared that—
“The trustee shall not charge as expenses of the trust any overhead expenses of the trustee, nor compensation to any of its officers or employees, nor any expense attendant upon the investment, collection or handling of moneys, property or securities into which the trust property by this instrument conveyed may be turned or converted by the trustee, . .
The ordinary rule for the construction of written instruments applies to declarations of trust. Where their text is plain and unambiguous there is nothing to construe. In Central Union Trust Co. v. Trimble, 255 N. Y. 88, 93, 174 N. E. 72, the action was to construe a trust agreement. It was there said:
“Processes of construction may not be resorted to for the purpose of reading into the trust deed an intention not expressed or legitimately to be implied from the language used when construed in the light of the surrounding circumstances. We are to search, not for the probable intention of the settlor merely, but for the intention which the trust deed itself, either expressly or by implication, declares. We are to ascertain the intention from the words used and give effect to the legal consequences of that intention when ascertained.” '
In 26 R. C. L. 1254, 1256, it is said:
“If the language of the instrument is unambiguous and perfectly clear, there is no field for construction.
“In construing an instrument creating a trust the usual rules as to the admissibility of extrinsic evidence to affect writings apply, and where the instrument is free from ambiguity, and there is no imperfection or inaccuracy in its language, the donor’s intention is to be collected from- the words used by him, and parol evidence is not allowable for the purpose of adding to or explaining or subtracting from it, or to raise an argument in favor of any particular construction.”
See, also, Restatement, Trusts, sec. 38.
The rule is also fundamental that when a trust has been created and the trust res has been delivered to the trustee, the settlor of the trust cannot thereafter be heard to say what was intended by the trust agreement. When it is unambiguous it speaks for itself. In Boyd v. United States, 34 F. 2d 488, it was said:
“Where settlor by valid transfer in trust alienated his entire title to trust property ... he had no right by subsequent agreement with trustee to alter terms of trust, . . . and such agreement was therefore void.” (Headnote 3.)
In Jones v. Nicholas, 151 Ia. 362, 130 N. W. 125, it was said:
“The courts almost universally hold that a trust once perfectly created is irrevocable even though voluntary; and that subsequent acts of the settlor or trustee cannot affect it. (Citations.)”
In James v. James, 260 Mass. 19, 156 N. E. 745, where the original terms of a deed of trust made no provision for its amendment, a subsequent memorandum of agreement which purported to amend the original terms, signed by some, but not all of the persons concerned in the trust, the Supreme Judicial Court said:
“It is settled in this commonwealth that a ‘voluntary and fully executed settlement cannot be revoked or altered in the absence of any provision in the instrument reserving such power.’ (Citations.) Upon the facts found, the proposed amendment was not assented to by all parties interested in the trust. and never became effective to modify or change the terms of the trust instrument . . .” (p. 22.)
In 26 R. C. L. 1229, it is said:
“It is equally well settled that no declarations of a former owner of the property, made after he had parted with his interest therein, can be received in evidence to effect [affect] the legal or equitable title to the premises. These rules are applicable to resulting trusts.”
In 1 Bogert on Trusts and Trustees, sec. 42, it is said:
“Ordinarily the settlor of a trust in which the fee or absolute interest is granted has no interest in the trust property after the complete creation of the trust. He is as much a stranger to that property as a third person who has had no connection with it. The legal title to the property is in the trustee, and the equitable interest rests in the beneficiary.”
Still more obviously, we think, does the rule just stated apply where, as here, there were two settlors of the trust estate. There is no pretense that Mrs. Elma E. Bayless, one of the grantors of this trust, gave her assent to any modification of the terms of' the original trust agreement, by the so-called supplementary agreement, exhibit “A,” signed by Bayless. Most important of all,' however, was the fact that the beneficiaries of the trust, the plaintiffs herein, never assented to any purported agreement of the tenor of exhibit “A.” In this view of the case, it is immaterial whether C. C. Bayless signed it or not. This court holds that the rights of plaintiffs to the rights and liabilities of defendant were governed exclusively by the trust agreement 'of April 8, 1926, and were not modified, enlarged by interpretation, or otherwise affected, by exhibit “A.”
This conclusion brings us to the question whether defendant did sell its own securities to the trust estate at a profit; and also to the related question whether “any overhead expenses of the trustee” or “compensation to any of its officers or employees,” or “any expense attendant upon the investment, collection or handling of moneys, property or securities” were charged or retained by the trustee “other than the specific compensation based on the percentage of the income as hereinafter specified,” to wit, five percent.
Touching the principal securities owned by defendant, proportions of which are sold to the trust estate at prices above cost, and as to which certain “adjustment” expenses of overhead, etc., were included in the price charged by defendant when it sold them to the trust estate, the bare facts are scarcely in dispute:
In financing a $1,000,000 bond issue for the Catarina Farms Com pany, defendant received commissions aggregating $81,700, and incurred expenses for traveling, printing bonds and attorneys’ fees in an aggregate amount of $6,181.15, leaving a total net commission or profit of $75,518.85. It sold $6,000 worth of this bond issue to the trust estate for $5,995 — at $5 less than par.
In financing a $215,000 bond issue for the Criterion Building Company, defendant received a commission of $15,000; total expenses, $1,525; net commission or profit, $13,475. It sold $16,000 of this issue to the trust for $15,980 — at $20 less than par.
El Jardín Hotel issue, $250,000; net commission or profit after deducting all expenses, $11,989. Sold $3,500 of this issue to the trust for $3,482.50 — at $17.50 less than par.
Interstate Amusement Company, two issues, $1,475,000; net commissions or profit after deducting all expenses, $25,450. Sold $6,500 of these issues to trust at par.
Hoblitzell Investment Company, two issues, $975,000; net commissions or profit after deducting expenses, $25,375. Sold $10,000 of these issues to trust at par.
San Antonio Suburban Irrigated Farms Company, amount of issue not shown; net commission or profit, $4,714.97. Sold $7,500 of this issue to trust at par.
Texan Hotel Company, issue, $85,000; commission note for $8,500 received for financing services which cost defendant $1,176.11, leaving nominal commission or profit of $7,323.89. Sold $7,000 of this issue to trust at par. '
Osage Building Company, issue $45,000; net commission or profit $2,642.24. Sold $23,000 of this issue to trust at par.
Considering the securities just mentioned, how they were acquired by defendant, and the generous commissions it received for handling them, can it be fairly said that the several amounts of these issues sold by defendant to the trust estate at par (in three instances at a trifle less than par) were not “sold to the trust at any profit to the trustee,” and that the trustee did not “charge as expense of the trust any overhead expenses” of the trustee?
We see no escape from giving a negative answer to this vital question. These securities were not sold to the trust at what they cost the trustee — far from it. Of course the defendant was entitled to its commission for financing the bond issues of the named corporations ; and having acquired those issues it was privileged to sell them to the buying public at any price it could obtain — market value or any other — and at any profit its prudent investments therein might afford. If defendant can be justified in its sales of these securities to the trust at market value and ignore the specific and repeated language of the trust agreement that they were not to be sold to the trust at any profit whatever, and that none of the overhead expenses of the defendant could be considered in calculating the price to be charged to the trust, then all the precise and specific language inserted in the trust agreement at the instance of the attorney for the grantors of the trust, as shown by the record, to prevent that very practice, goes for naught, and a trust company may with impunity make ducks and drakes of the trust estates committed to its keeping. To sanction such a practice would severely shake public confidence in the trust companies doing business in this state. The powers and practices of trust companies doing business in Kansas are governed by Kansas law, by Kansas statutes where statutes assume to govern them, and otherwise by our settled precedents which exact the highest good faith from those who assume a fiduciary responsibility for the handling of other people’s money. (Frazier v. Jeakins, 64 Kan. 615, 618, 619, 68 Pac. 24; Alumbaugh v. Hedges, 125 Kan. 449, 453, 265 Pac. 50; Hotchkiss v. Fischer, 136 Kan. 530, 16 P. 2d 531; Vincent v. Werner, 140 Kan. 599, 38 P. 2d 687.) See, also, the incisive and pertinent language of one of the foremost American jurists of our time as quoted in In re Estate of Brown, 147 Kan. 395, 400, 76 P. 2d 857.
In the trial below it was developed and admitted that defendant had a practice of calculating its overhead and other expenses and apportioning them to its loans and adding them to the price it paid for the securities it purchased, or deducting such expenses from the commissions it received for financing such securities. A witness for defendant referred to this practice as a “sales expense” allowance. Doubtless this was quite a proper method of keeping defendant’s accounts for its own information; but in fixing the prices at which it sold such securities to the trust estate defendant had bound itself in the trust agreement not to make any such charges. Defendant must be held to have made proper estimates and calculations of overhead and other expenses and for its compensation when it agreed to undertake the services of a trustee for the Bayless trust estate at the specified compensation of five percent of the net income, and not more.
The trial court’s finding that none of the securities were sold to the trust at a price “over and above [their] market value,” and that the trustee did not realize “any profit in the sale of its own securities to the trust over and above the market value of such securities,” was a finding which did not in the slightest degree acquit the defendant of its breaches of the trust agreement as charged in plaintiffs’ petition. The restriction on the sale of defendant’s securities to the trust was not that they might be sold to the trust at no profit over and above their market value, but that they could not be sold to the trust at any profit whatsoever; and the market value had nothing to do with the price, except possibly on broad questions of defendant’s fair dealing in its investments in behalf of the trust estate.
In view of what has been said above, it is clear that the judgment of the district court cannot stand. As to the relief prayed for, plaintiffs ask for the application of the equitable rule founded on principle and precedent which is that where a trustee breaches its trust by making illegal investments of the trust res or other unauthorized disbursements of its assets, the trustee is bound to restore the trust funds on the timely demand of the beneficiaries of the trust or others authorized to act in their behalf. (Restatement, Trusts, §§ 205, 210; 2 Perry on Trusts, 7th ed., §§ 847, 851, 853; 3 Bogert on Trusts and Trustees, § 708.)
We have referred above to certain bond issues purchased by defendant and sold to the trust fund, but we have done so only to consider whether they were thus sold at a price above cost as defined in the trust agreement. Our treatment of that subject should not be regarded as a finding of fact, for that is not the function of an appellate court. (Allen County Comm’rs v. Board of Education, 142 Kan. 770, 772, 51 P. 2d 973; Webster v. Toland, 148 Kan. 36, 40, 79 P. 2d 884; National Mutual Casualty Co. v. Hobbs, 149 Kan. 625, 635, 88 P. 2d 1006.)
The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for an alleged conversion of funds in a bank. Judgment was for defendant sustaining a demurrer to the petition. Plaintiff appeals.
After the formal allegations, the petition alleged that prior to and subsequent to March 4, 1927, plaintiff was a depositor in defendant bank and that on or about that day defendant fraudulently took from plaintiff money in the amount of $2,047.40 and converted it to its own use; that this conversion consisted of defendant’s agents making an unlawful deduction of that sum from a credit of $3,140.75 due plaintiff from defendant for a deposit; that the fraud was further consummated by the bank making fictitious credits and fraudulent entries on its books with reference to the account of plaintiff for forged notes purporting to have been given the bank by plaintiff and finally charging on March 4, 1927, to plaintiff’s deposit account In the bank the sum of $2,047.40 for two of the forged notes, that is, one dated August 30, 1926, in the principal sum of $700 and $28.85 accrued interest, and a second note in the principal sum of $1,300 and $18.77 accrued interest, all to plaintiff’s damage in the sum of $3,725. The petition further stated that plaintiff was seventy-two years old and illiterate; that about June, 1934, he suffered a physical and mental breakdown, which compelled his retirement from active business; that this breakdown continued until February, 1938; that for many years during and subsequent to 1906 plaintiff was a depositor in the bank and had confidence in its officers; that during 1925,1926 and 1927 plaintiff maintained a dual checking account in defendant bank and .the Citizens State Bank of Wichita, and during all the times mentioned he received no exact information as to his account in defendant bank except entries in a passbook, which remained in defendant’s possession until about August 9, 1928; that on or about February 25, 1938, plaintiff for the first time discovered the actual facts in regard to the fictitious entries in his passbook and the conversion of his money. Judgment was asked in the amount of $3,726 actual damages and $1,000 exemplary damages.
The petition was filed January 16, 1940. It will be noted that the conversion is alleged to have taken place about March 4, 1925, almost, thirteen years before the action was started. It will also be noted that plaintiff alleged in his petition that he did not learn about the false entries until February 25, 1938. If the statute started running on March 4, 1927, then the action is barred. If it did not start running until February 25, 1938, then it is not barred. The answer to this question requires a further examination of the record. In compliance with an order of the trial court to strike certain allegations from the petition and to make it definite and certain the plaintiff stated in an amended petition that on August 9, 1928, the bank gave him his passbook which showed that he had no balance in the bank and that from then on until February, 1938, he did nothing about it although from August 9, 1928, until June, 1934, he was in good health and able to do business. Defendant demurred to this petition. The demurrer was sustained. Hence this appeal.
Granting for the sake of argument that the petition did state a cause of action for relief on the ground of fraud, can plaintiff be heard to say that he did not learn until 1938 of the fraud practiced on him in 1927 when the bank told him, by delivering his passbook to him in 1928, that it owed him nothing?
In Kansas City Title & Trust Co. v. Fourth Nat’l Bank, 135 Kan. 414, 10 P. 2d 896, in considering a similar question this court said:
“The relation of a bank to its depositor is that of debtor and creditor, and the sum he has on deposit in his checking account is a debt of the bank payable to him on demand; yet because it is payable on demand he cannot sue the bank for the amount of his deposit until payment on demand has been made and refused; and such demand and refusal are necessary to set in motion the statute of limitations. But where the bank renders a statement to the depositor showing the status of his checking account, it says to him in effect, ‘This bank owes you this stated balance, and no more.’ Such statement may fairly be construed as a notice that any claim the depositor may make in excess of the stated balance would be resisted by the bank. And in that view of the situation the depositor’s formal demand for a greater sum and the bank’s formal refusal to pay a larger sum would be unnecessary to perfect the depositor’s cause of action, and likewise to set in motion the statute of limitations. If this is not the legal effect of the bank’s monthly statement to its depositor, it is not apparent what function the monthly statement performs.” (p. 422.)
See, also, notes in 28 A. L. R. 1435; also, 87 A. L. R. 344.
The fact that, as alleged in the petition, the plaintiff was illiterate does not take the case out of this rule. He would be able to tell that the bank showed it owed him nothing even if he were unable to read or write. Besides, the bank owed him no greater duty than it owed its other depositors. The petition does not allege any act or word of the bank by which it sought to conceal from plaintiff the status of his account.
Plaintiff complains in this court that the trial court should not have required him to set out the matters that he was required to set out in his amended petition. Be that as it may, he did set them out. Had he not set them out they would have come out during the trial of the action. When they did come out they would have disclosed that the statute of limitations started running against the plaintiff’s cause of action not later than August 9, 1928, about twelve years before the action was commenced, and that it was barred.
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 to recover the purchase price of personal property sold by plaintiff to defendant. The cause was tried by a jury, which found in favor of plaintiff and answered special questions submitted. The trial court rendered judgment in favor of plaintiff and defendant appeals, specifying errors which are presented under five general headings in his brief. Our statement of pleadings and of matters occurring at the trial is limited to those necessary to discuss the contentions presented.
A brief review of the pleadings discloses that plaintiff’s petition alleged that she was the owner of certain equipment used in operating an automobile tire and service station in Topeka, and that on October 26, 1938, defendant, being desirous of purchasing the equipment, orally agreed with Lawrence J. Richardson, the agent and attorney of plaintiff, to purchase the same, agreeing to pay therefor the sum of $1,500, payable upon plaintiffs furnishing defendant a bill of sale and a release of a chattel mortgage; that in pursuance of the agreement, and on October 26,1938, Richardson, as agent and representative of plaintiff, delivered the equipment to defendant, who has ever since used the same; that about November 26, 1938, plaintiff tendered defendant a bill of sale and a release of the chattel mortgage and demanded payment of the sum of $1,500, but defendant refused to accept the bill of sale and release of the mortgage or to pay the purchase price or any part thereof.
Defendant’s answer consisted of a general denial, made certain immaterial admissions 'and denied he had made any contract to purchase the equipment; that he had received an offer from Glenn Chapman and Harold Chapman, who claimed to be owners; that he had been informed the title to the equipment was impaired and that he had advised Glenn Chapman and Harold Chapman and their attorney, Lawrence Richardson, that if they could perfect their title to his satisfaction he would consider purchase, if he could procure a certain real-estate lease; that the title was never perfected and that he never entered into a contract with them or the plaintiff for the purchase of any part of the equipment. By a cross petition defendant sought to recover rentals by reason of the equipment being left on real estate which was leased to him. To this answer was attached a form of verification which stated defendant had read the statements, allegations and denials contained in the answer and cross petition, and the same were correct and true.
The first contention made by appellant is that the trial court-erred in instructing the jury that the allegation of the agency of Richardson for plaintiff was admitted. In that connection our attention is directed to the pleadings, and it is insisted that under the rule of Caple v. Drew, 70 Kan. 136, 78 Pac. 427, the agency was sufficiently denied. We shall not labor with the form of the veri fication or its sufficiency. There was written evidence of plaintiff to Richardson directing him to look after her interests. There was also some oral evidence, the competency of which has been questioned. In addition, under date of December 8, 1938, the defendant caused to be served a notice to “Clara Chapman, through her agent and attorney, Lawrence Richardson” and others, directing them to remove the equipment from his premises. Although there was dispute in the evidence as to when defendant was informed of the agency, there was no denial of it, and the trial court did not err in the instruction.
The second contention is that appellant was entitled to have his defense submitted to the jury on his requested instructions and that the instructions as given failed to present his defense adequately and fairly. The record shows that two instructions were requested, but at no place is there any showing that any objection was made to the instructions given. In a reply brief appellant says he did object orally, concedes the record is silent that any objection was made, and then says the instructions were not such as to require record exceptions at the time they were given. Thus again is presented a situation where our discussion of points argued may be unfair to the trial court. We have examined the two requested instructions, one of which includes the plaintiff’s claims and the burden of proof in connection therewith; the other includes defendant’s claims as to conditions to be met by plaintiff before a sale was consummated, and unless plaintiff proved such consummation, verdict could not be for her. We have compared these requested instructions critically with those given and are of opinion the instructions given included the essential elements of those requested, and that it may not be said that appellant’s contentions were not fairly presented to the jury, nor that undue stress was laid on plaintiff’s claims. The instructions as a whole made it clear plaintiff had to prove her case by preponderance of the evidence before she could recover.
Although the pleadings made no mention thereof, during the course of the trial it developed that plaintiff obtained her title to the property sold by foreclosing a chattel mortgage which she held. One of appellant’s attorneys was skeptical because some third person said the mortgage was “phoney” and because one of the mortgagors said they had received a series of small amounts from time to time to make up the total of the note secured by the chattel mortgage. There was no evidence that any person, in a position to do so lawfully, had ever attacked the validity of the mortgage. In the sixth instruction reference was made, without specification of any of the details noted, to the situation and the jury was advised to consider the mortgage as valid between the parties. In the seventh instruction the court advised the jury the mortgagee of personal property was vested with the legal title and the right of possession in accordance with the terms of the mortgage and if it found from the evidence the mortgagors had surrendered possession to the mortgagee, then as between them the latter had good title and the right to dispose of the property to whom she saw fit. The objection to the sixth instruction is that it fails to present appellant’s theory. It must suffice to say the theory is not based on the evidence. The contention as to the seventh is that it was erroneous and prejudicial, but the argument again turns on a theory which finds no support in the evidence.
Complaint is also made of the twelfth instruction, that during the trial reference had been made to plaintiff’s failure to comply with the bulk-sales law; that appellant had failed to sustain his contention ; that the evidence relating thereto was withdrawn insofar as it relates to the particular issue, etc. For whatever value it was worth, it was shown the mortgagors had given notice to their creditors as required by the bulk-sales law about the time the mortgaged personal property was delivered to the mortgagee. Under Faeth Co. v. Bressie, 125 Kan. 425, 264 Pac. 1041, the bulk-sales law does not apply to a sale by the mortgagee.
And finally, objection is made to instruction thirteenth, which stated that during the course of the trial reference was made to a lease executed October 26, 1938, between the landlord and the appellant, and the jury was advised the obligations of the lease were binding only on the actual parties thereto. The complaint is that when the lease was prepared, Richardson, agent of appellee, was present and did not object to a statement embodied in the lease that there was a possibility of the owner of personal property on the premises (appellee) selling same to appellant and appellant agreed not to purchase it unless some unpaid rent was paid to the lessor. It is contended that appellee is bound because her agent did not speak up. Assuming correctness of that claim, if appellant wanted an instruction on that phase of the matter he should have asked for it. The omission of the court to give it did not make the thirteenth instruction erroneous.
Appellant’s third contention is that his demurrer to plaintiff’s evidence should have been sustained. It is contended there was no contract entered into between appellee and appellant for the sale of the property. That contention is not good. It is also said that there was no proof that Richardson, who negotiated for plaintiff, was her agent. That contention cannot be sustained. No good purpose will be served by setting out plaintiff’s evidence disclosing both of the above matters.
The fourth contention of appellant is that the court erred in not submitting certain questions submitted by appellant. The appellant submitted ten questions. We have examined them and compared them with nine which the trial court did submit. Those submitted by the court included, in substance, the interrogatories asked in eight of those requested. The second question asked whether there was an attachment on the property described in plaintiff’s petition on November 26, 1938. In view of the fact that under the pleadings plaintiff had to prove a sale as of about October 26, 1938, and that appellant went into possession, failing which she could not recover, it became immaterial whether there was an attachment a month later. The third question asked was whether all creditors of Chapman Brothers, the mortgagors, mentioned in their affidavits, were paid on October 26, 1938. The question asked for information outside the issues, and not conclusive in any event. There was no showing that any person, creditor or otherwise, had any claim on the mortgaged personal property superior to that of the mortgagee, who had reduced it to her possession.
And, finally, appellant' contends he was entitled to judgment on the special questions. The motion for such judgment concedes that the answers are supported by the evidence. Those answers compel a judgment contrary to the general verdict only when they or some of them are inconsistent or not reconcilable with the general verdict. If the answers are consistent with each other and reconcilable with the general verdict, the general verdict must stand. (See Witt v. Roper, 149 Kan. 184, 186, 187, 86 P. 2d 549; Montague v. Burgerhoff, 152 Kan. 124, 127, 128, 102 P. 2d 1031, and cases cited.) The point pressed by appellant is that by one answer the jury found the sale was made “a few days prior to October 26,1938,” but by another that he did not know until about November 1, 1938, that plaintiff claimed to be the exclusive owner of the property. It is argued that this shows appellant dealt with an undisclosed principal, and as the transaction was not ready to close until the bill of sale was tendered about November 26, 1938, in the meantime he had a right to refuse to deal, as he did when the bill of sale and release of the mortgage were tendered him and he refused to complete the transaction. We need not review authorities cited on the point that one may choose with whom he contracts. The specific questions and answers on which the argument is predicated were:
“8. Was the defendant advised at any time that the plaintiff, Clara Chapman, claimed to be the exclusive owner of the personal property in question? A. Yes.
"9. If you answer the last foregoing question in the affirmative, then state (a) the date thereof, and (b) by whom he was so advised. A. (á) On or about November 1, 1938; (b) Lawrence Richardson, attorney for plaintiff.”
It will be noted the question did not ask whether appellant knew who Richardson represented. The first question asked was:
“Was a contract for the purchase . . . entered into between Lawrence J. Richardson as agent and attorney for the plaintiff, Clara Chapman, and the defendant, Bert Ticehurst? A. Yes.”
and by another answer, the date thereof was “a few days prior to October 26, 1938.” We think the particular answers relied upon by appellant do not support his contention, but, on the contrary, that the answers are consistent with each other and with thé general verdict, and that the trial court did not err in denying appellant’s motion for judgment on the answers to special questions.
We have treated each of appellant’s contentions of error, none of which is sustained. This .was a case where there was sharp dispute of the fact as to whether or not a contract of sale and purchase had been made between appellee and appellant. That dispute has been resolved by the jury in favor of appellee, and the trial court has entered judgment thereon.
The record discloses no reversible error, and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
In 1927 plaintiff gave an oil and gas lease on 160 acres of land. At the times hereinafter mentioned the defendant was the owner of the lease.
The operations of defendant which caused the damage complained of in the petition occurred on the east half of the southeast quarter of the section. The dwelling house is located in the northeast corner of the south forty. Wildcat creek is a stream running from the southwest to the northeast, coming into the south forty on the west line and running in a northerly and easterly direction until it crosses the line into the north forty west of the farm buildings, thence running east and crossing the east line north of the buildings.
Producing wells were brought in about 1928. Shortly thereafter a pond was built on the south bank of the creek, north and west of the farm buildings, and this pond is referred to as the “old” pond. Later and about 1933, a “new” pond was erected near the center of the north forty. Salt water and oil sediment were deposited in these ponds.
The petition alleged:
“That by virtue of the said lease defendant had, and has the right only to develop, operate upon, and use the said leased premises in a manner reasonably necessary and proper to the practical development thereof and production therefrom of oil or gas, with due, lawful, and reasonable regard and respect for plaintiff’s rights, as the fee owner of said premises; that in disregard of plaintiff’s rights in and to said leased premises, defendant has negligently, care lessly and arbitrarily operated upon and handled the said premises, and permanently damaged the same through impractical and unusual operations, all unnecessary to the reasonable development of the said premises' for oil and gas, as hereafter more particularly averred.”
It was alleged that in 1933 the defendant constructed a large pond upon the east half of the southeast quarter, and placed large quantities of salt water and other polluting liquids and substances therein; that defendant carelessly and negligently permitted the dam to leak; that the salt water and other polluting substances oozed and flowed through the dam, and that about two acres of plaintiff’s land was saturated and polluted, and the value of the two acres was destroyed to plaintiff’s damage in the sum of $200. It was alleged that the two acres was surrounded by other valuable land and the balance of the land was thereby permanently depreciated to plaintiff’s damage in the sum of $1,000.
For a third cause of action the petition alleged:
“1. That to the east and south of plaintiff’s leased premises, is located the Palmer farm, which farm defendant, between the years 1928 and to November, 1938, operated for oil and gas; that the wells upon the said Palmer farm produced large volumes of salt water, base sediment, and other pollutive liquids, destructive to vegetation and the fertility of soil, upon coming in contact therewith; that between the years 1933 and November, 1938, defendant brought large volumes of said salt water, base sediment, and liquid impurities, to the surface of the ground from one well located upon and near the west line of the said Palmer lease, and across the road, which extends between plaintiff’s lands above described, and the said Palmer lease; that after bringing said poisonous, destructive, and' impure liquids and substances to the surface of the ground, defendant ran the same through a pipe line which extended from the said well along the said road to the east of plaintiff’s land, and thence to plaintiff’s land, upon which defendant imported, brought, and dumped the said poisonous liquids and substances into a small pond; that said pond was located on plaintiff’s land a short distance north of the south section line of the north half of the east half of the southeast quarter of the leased premises.
“2. That Wildcat creek extends and flows in a generally southwesterly northeasterly direction through and across the quarter section of plaintiff’s leased premises, on which said creek is located, said pond being near to and substantially upon the banks of the said Wildcat creek; that said creek is a natural watercourse in and through which naturally flows a substantial stream of good, pure water, used and useful in its natural state for irrigation, and for watering of livestock.
“3. That to the south and east of said creek, and the said pond located substantially upon the banks thereof, as above alleged, plaintiff owns and maintains her residence and home; that to the north and west of plaintiff’s said residence, and between the same and the said Wildcat creek, and said pond upon the banks thereof, plaintiff, so far as defendant’s operation would permit, has for many years maintained and used a feeding lot for livestock, particularly cattle; that growing along Wildcat creek, and in the general vicinity of the said pond, located upon the banks thereof, defendant owned a large number of thriving, valuable, and healthy trees; that said trees were of different sizes, kinds, and varieties, consisting of elm, hackberry, walnut, box-elder, mulberry, locust, and sycamore.”
It was alleged that almost continuously from 1933 until November, 1938, defendant “imported and brought in and upon plaintiff’s land” and placed in the pond large quantities of salt water and polluting substances from the Palmer lease; that defendant permitted the substances to escape, and that the water in Wildcat creek became charged, polluted and poisoned; that the banks and soil along the creek became polluted and poisoned; that by reason thereof the trees above described were destroyed to plaintiff’s damage in the sum of $1,000.
In its answer defendant set up the statute of limitations. The court sustained defendant’s demurrer to the evidence as to any damage to the trees — to the two-acre tract — and damage to the land resulting from the destroyed acreage. The appeal is from the order sustaining the demurrer to the evidence.
The theory of plaintiff urged on this appeal is thus stated:
“. . . Plaintiff contends that this is not an action for damage because of a trespass, but an action to recover damages sustained by reason of an abatable nuisance, and that she may recover all damage actually sustained within the two years immediately preceding the suit, and if such damage sustained during said two years immediately preceding the suit is in itself permanent as to the injury, that permanent damage as to that injury .may be allowed. . . .”
Plaintiff relies upon K. P. Rly. Co. v. Mihlman, 17 Kan. 224; Union Trust Company v. Cuppy, 26 Kan. 754; Kansas City v. King, 65 Kan. 64, 68 Pac. 1093; Sullivan v. Davis, 29 Kan. 28; Telegraph Co. v. Moyle, 51 Kan. 203, 32 Pac. 895.
As stated, the lease under which defendant operated was given in 1927. Production began in 1928 and by 1933 eight producing wells had been completed. Prior to 1933 the salt water and refuse from these wells and from the Palmer lease were conducted into the old pond located on Wildcat creek just north and west of the residence occupied by plaintiff. The damage to the trees set forth in the third cause of action was based on pollution from the old pond. There was testimony that the leakage from the old pond caused the construction of the new pond to the north in 1933. , Thereafter the salt water and refuse from the wells on the lease were deposited in the new pond — the salt water from the Palmer lease was conducted into the old pond until the Palmer well was plugged in 1938.
Appellant testified that there had been no water in Wildcat creek fit for cattle to drink since the oil operations began; that 1936 was the last time she took cattle for pasture; that the creek got salty in the latter part of the summer; that the old pond was built so it would drain into the creek; that she knew in 1933 that the old pond was leaking into the creek; that the trees that were damaged were near the old pond; that she had resided on the premises during the time defendant had operated the lease. She also stated that she knew in 1936 that there was leakage from the new pond and that she had a man named Shaw make ditches around the new pond to carry the water to the creek; that the wheat around the new pond died in the spring of 1937 and the weeds had been dead for several years. There was testimony that most of the trees were dead in 1937; that they did not leaf out in the spring of that year.
Plaintiff’s action was commenced in April, 1939.
From the outline of plaintiff’s evidence above set forth, it is clear the injuries complained of were known and observable more than two years prior to the institution of the action. The trees did not leaf out in the spring of 1937, the weeds around the new pond had been dead for several years, and the wheat around the new pond died early in the spring of 1937. Therefore, it is clear that for the several items sued upon plaintiff’s cause of action was complete more than two years prior to the date of this suit.
Under the rule announced in a long series of cases (Lackey v. Prairie Oil & Gas Co., 132 Kan. 754, 297 Pac. 679; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899; Fulmer v. Skelly Oil Co., 143 Kan. 55, 53 P. 2d 825; Seglem v. Skelly Oil Co., 145 Kan. 216, 65 P. 2d 553) we think the action was barred by the statute of limitations.
Under the issues as framed by the pleadings the action was for permanent damages-. But assuming the action was for the loss of the trees apart from the damage to the real estate, the plaintiff would not be in a more favorable situation. The cause of action accrued upon the death or destruction of the trees, and that was more than two years before the action was begun.
The demurrer to the evidence of the plaintiff was properly sustained..
The judgment is affirmed. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
This is an appeal from an award of compensation in a case where a workman sustained an injury to his thumb, and the loss of the four fingers of his right hand.
The respondent employer and its insurance carrier promptly began to pay the scheduled awards for such specific injuries according to the statute, but in this case there was also a total incapacity lasting about two years for which an additional award was made. That is the grievance complained of herein.
Robert C. Amos was an employee of the J. E. Trigg Drilling Company, whose business is indicated by its corporate name. On June 16, 1937, while Amos was greasing a motor-driven pump jack, his right hand was caught in its gears. All four fingers were crushed so as to require their amputation, and there was an injury to his thumb which caused a loss of its first phalange. For these injuries respond ents paid compensation in accordance with the statutory schedule (G. S. 1935, 44-510), viz.:
(2) Loss of first finger, 60 percent of claimant’s average weekly wages for. 37 weeks
(3) Loss of second finger, same, for. 30 weeks
(4) Loss of third finger, same, for. 20 weeks
(5) Loss of fourth finger, same, for. 15 weeks
(6) Loss of'first phalange of thumb, same, for. 30 weeks
Total. 132 weeks
As matters transpired in this case, however, the workman’s mutilated thumb and his hand continued to give him so much pain as to prevent him from resuming any manual or other work for a long period after the expiration of the normal length of time his scheduled injuries should require for healing. An abortive nail kept growing out of the end of the mutilated thumb which was so tender and so susceptible of injury that he could not use his right hand. The hand itself would intermittently swell, causing loss of sleep, physical weakness, and loss of appetite. Frequent consultation and advice of doctors brought claimant no relief, until in April, 1939, when he was taken to an X-ray specialist who discovered a small particle of steel embedded in his hand. A competent surgeon removed that bit of' steel, and likewise removed the matrix of his thumb; and in a month’s time thereafter claimant’s hand healed, his health and strength were restored, and he was able to work as a field hand the ensuing harvest. The total duration of his incapacity in the circumstances just stated lasted from the time he was injured, in June, 1937, until a month after the successful surgical operation' in May, 1939. Because of that protracted temporary total disability, the trial court gave claimant an additional award of compensation for 104 4/7 weeks at the rate of $18 per week, or a total of $1,882.28. The court computed the amount due on account of the scheduled injuries, $18 per week for 132 weeks, gave credit for the regular periodical payments made thereon, added the additional award for total temporary disability, plus some small items not controverted, and gave judgment for $1,162.28 predicated on such computation.
Respondents appeal, complaining that the compensation award was for a greater sum of money than permitted and prescribed by the compensation act. They assert that an award for the aggregate number of 132 weeks for the scheduled injuries, at $18 per week (60 percent of the workman’s weekly wages, not exceeding the $18 maximum) plus 10 percent of the 132 weeks at the same rate for a normal healing period, together with the routine expenses for the services of the compensation commissioner and his shorthand reporter, and for any proper medical and hospital bills chargeable to the employer constituted the limit of any award permitted or allowed by the statute.
As a part of this contention, counsel for respondents assert that our recent decision, Chamberlain v. Bowersock Mills & Power Co., 150 Kan. 934, 96 P. 2d 684, 129 A. L. R. 654, which might justify the present judgment, was a downright nullification of the statute, and particularly subparagraph 21 of G. S. 1935, 44-510, which reads:
“(21) Whenever the workman is entitled to compensation for a specific injury under the foregoing schedule, the same shall be exclusive of all other compensation except the benefits provided in paragraph 1 of this section, and no additional compensation shall be allowable or payable for either temporary or permanent disability: Provided, however, That the commission, arbitrator or committee maj>-, in proper cases, allow additional compensation during the actual healing period, such period not to be more than ten (10) percent of the total period allowed for the schedule injury in question nor in any event for longer than fifteen (15) weeks. . . .”
The excepted benefits provided in subparagraph 1 in the section just quoted refer to incidental matters such as medical and hospital treatment and the like, about which we have no present concern.
In the Chamberlain case the scheduled injury was the loss of the third finger, for which the statutory allowance was 60 percent of the workman’s weekly wages, or $18, for twenty weeks, plus two weeks allowed as a healing period, or a total of $396. To that award this court on appeal directed that on the well-established fact that claimant’s injured finger became infected and abscesses developed, necessitating successive surgical operations which totally incapacitated him for eight weeks, the workman was entitled to an additional award for that length of time, notwithstanding the language of sub-paragraph 21 to the effect that an award for a scheduled injury (as for the loss of a finger) shall be exclusive of all other compensation, and “no additional compensation shall be allowable or payable for either temporary or permanent disability.”
This court’s opinion written by Mr. Justice Hoch frankly noted that our liberalized interpretation of that provision of the compensation act differed from that of some other states, but that we did not stand alone in our view. The still more recent case of Morgan v. Adams, 127 Conn. 294, 16 Atl. 2d 576, accords in principle with the rule applied in our Chamberlain decision. In that case a workman sustained the loss of the vision of his left eye, for which the local law awarded compensation at a specified proportion of his weekly wages for 156 weeks. Payment of this award was completed in May, 1935. Thereafter the sightless eye became troublesome and had to be removed. That operation caused a further total incapacity for nine weeks. The compensation commissioner gave an additional award therefor. The trial court disapproved it, but the supreme court held with the commissioner, quoting from its own earlier case of Costello v. Seamless Rubber Co., 99 Conn. 545, 122 Atl. 79, thus:
“ ‘But where, in consequence of the amputation, injuries result which are distinguishable from those immediate results of the amputated limb, for example, if a nervous disorder ensue, or blood poisoning set in, or a phlebitis develops, affections such as these were not intended by the compensation act to be compensated in the loss of this member. They are not the normal and immediate incidents of the lost member.’ ”
In another late case, Robichaux v. Realty Operators, Inc., 195 La. 70, 196 So. 23, a workman sustained an injury which resulted in the amputation of his right index finger. The scheduled allowance for such a loss was 65 percent of his wages for thirty weeks. About the time of the amputation, gangrene had set in, the wound remained open, and the professional testimony of surgeons was that another operation and skin grafting might be necessary to cause the wound to heal. Meantime the workman had a temporary total disability for a period much exceeding the thirty weeks’ compensation allowed for the loss of the finger. The supreme court held that such an abnormal consequence of the loss of the finger entitled the workman to an additional allowance for such temporary total incapacity beyond the thirty weeks’ award for the scheduled injury.
Both aspects of this precise question are tersely stated in the recent case of Ottens v. Western Contracting Co., 296 N. W. 431, by the supreme court of Nebraska. Two of the headnotes read:
“Where disability resulting from compensable injury to fingers is the normal, usual, logical and expected consequence of the injury, no compensation can be awarded in addition to that provided by statutory schedule.
“Where a compensation claimant has suffered a schedule injury to some particular member, and some unusual and extraordinary condition affecting some other member has developed as result of the accident, an increased award should be made.”
A maj ority of this court is quite satisfied with the rule announced in the Chamberlain case, particularly as stated in the second section of its syllabus, but a painstaking and protracted study of this record fails to disclose sufficient evidence to support the trial court’s judgment that the consequence of the loss of plaintiff’s four fingers and part of his thumb was so unusual and extraordinary as to justify an additional award therefor beyond the statutory schedule (except a healing period allowance) — in the face of the statutory provision that in cases where compensation is made for specific injuries in accordance with the schedule, “no additional compensation shall be allowable or payable for either temporary or permanent disability.”
There is another subparagraph in G. S. 1935, 44-510 (No. 25) which might have some bearing on the case, but it was not raised below, and therefore should not be invoked to complicate the legal questions the litigants have chosen to present in this appeal.
In view of what has been said above, the district court’s additional award of compensation for 104 4/7 weeks cannot be sustained. However, under the general credence the trial court gave to claimant’s evidence, and minimizing the expert medical testimony, as it had the right to do, the trial court could have added 10 percent to the length of time the aggregate of the scheduled awards was to run, as a healing period — which would be 13.2 weeks. Adding this period to the 132 weeks of the scheduled award, we have a total of 145.2 weeks, to which length of time the trial court’s finding and judgment can be justified, but no further.
The judgment of the district court must therefore be modified as herein suggested, and the cause will therefore be remanded to the district court for final disposition in accordance herewith.
Reversed and remanded. | [
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The opinion of the court was delivered by
Horton, C. J.:
Appeal from an award made by commissioners to lay off and condemn a right-of-way for a railway company. The commissioners awarded the land - owners $1,999. Both parties appealed. Upon the trial, the jury returned a verdict for the land-owners against the railway company for $2,330.70. Judgment was entered thereon. The railway company excepted, and brings the case here. Upon the trial, the railway company introduced as witnesses J. W. Morris, A. M. McConkey, and John S. McMahan, who were farmers living in the vicinity of the land in controversy, and acquainted with the value thereof. Two of these witnesses testified that the land was worth $2,500; another of these witnesses testified the land was worth $25 an acre. For the purpose of testing the knowledge and competency of these witnesses, the owners inquired of them, upon cross-examination, concerning the sales of adjoining land. The propriety of allowing proof of the sales of similar property to that in question, made at or about the time of the taking, is sustained by some of the authorities and opposed by others. Such proof is held competent in Illinois, Iowa, Massachusetts, New Hampshire, New York, and Wisconsin, and wholly incompetent by the courts of Pennsylvania and Minnesota. (Lewis, Em. Dom., §443.) In a Massachusetts case it was said that—
“The price for which other adjacent lots had been actually sold was admissible, open, of course, to any evidence explanatory of the circumstances attending such sale, and tending to show why the purchasers gave a price greater than the true value of the land. If it had been a price fixed by a jury, or in any way compulsorily paid by the party, the evidence of such payment would be inadmissible before the jury. Upon the principle on which we should admit evidence of other sales between other parties of adjacent lots, this evidence was admissible, and none the less so because the railroad corporation were themselves the purchasers.” (Wyman v. Railroad Co., 54 Mass. 316.)
The objections to evidence of special sales of land are stated in East Pennsylvania Railroad v. Heister, 40 Pa. St. 53, where the court, speaking of similar evidence received in that ease, says:
“ It did not pretend to fix the market value of the land, but assumed to ascertain it by the special, and it may be excep tional, cases named. This would not do; for, if allowed, each special instance adduced on the one side must be permitted to be assailed, and its merits investigated, on the other; and thus would there be as many branching issues as instances, which, if numerous, would prolong the contest interminably. But even this is not the most serious objection. Such testimony does not disclose the public and general estimate which, in such cases, we have seen is a test of value. It would be as liable to be the result of fancy, caprice or folly as of sound judgment in regard to the intrinsic worth of the subject-matter of it, and consequently would prove nothing on the point to be investigated. The fact as to what one man may have sold or received for his property is certainly a collateral fact to an issue involving what another should receive, and, if in no way connected with it, proves nothing. It is therefore irrelevant, improper, and dangerous.”
See, also, Stinson v. C. St. P. & M. Rly. Co., .27 Minn. 284-289; Railway Co. v. Splitlog, 45 Has. 68; K. C. & T. Rly. Co. v. Vickroy, 46 id. 248. In this case, however, the land-owners, did not prove or offer to prove, to make out their case, any special sales of property adjoining the land in dispute. The evidence objected to was drawn out upon cross-examination^ and we think, where experts or persons are permitted to give their opinions as to value of land, a cross-examination of the kind referred to is not improper, or any ground for the reversal of a case. (K. C. & T. Rly. Co. v. Vickroy, 46 Kas. 248.) In that case it was decided that—
“In appeals from the awards of commissioners in condemnation proceedings, opinions as to the value of property should be confined to the property in question, unless on cross-examination, for the purpose of testing the knowledge and competency of the witness, the value of adjoining property is inquired of.”
The railroad company asked the court to instruct the jury —
“ That in assessing the damages done to the land by reason of the appropriation of a right-of-way through it for a railroad, the liability of teams being frightened, or the additional care by the land-owner made necessary in the future as to such teams, by reason of the proximity of such railroad, does not of itself constitute any grounds for special compensation; such damages are speculative, and not the proper subject of inquiry and damage.”
This instruction was*refused. Where such an instruction is applicable or necessary, it should be given. The instruction has been approved by this court in many cases. But the facts disclosed upon the trial hardly show that this instruction was needed in this case. The land in dispute consists of about 160 acres near the city of Wellington; only 10 to 15 acres at the time of the taking were broken, the remainder of the land was raw prairie, without improvements. There was no evidence offered or attempted to be offered in the case concerning teams being frightened by reason of the proximity of the railroad. The general charge to the jury seems to have been fair, and fully in accord with the decisions of this court for like cases. We do not think the refusal to give the instruction prayed for, considering the testimony offered, was prejudicial. It does not appear from any of the special findings that the liability of teams being frightened was an element in the damages returned.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The plaintiffs in error were the two-thirds owners of a horse-power threshing machine, the other third being owned by the father of one of them. When they went to a farmer’s for the purpose of threshing his wheat with their machine, they furnished two feeders, one man to drive the horse-power, and one man to measure the grain, it being the duty of the farmer for whom they were threshing to furnish pitchers, and the other necessary help. On the 16th day of September, 1886, the plaintiffs in error were en gaged in threshing grain for one Pampella, with a Nichols & Shepherd horse-power machine. E. E. Mastín was driving, and Jack Mastín was feeding. Galbreth, whom the Mastins brought to the Pampella farm to feed, had traded work with one Eankin, who was in the employment of Pampella, and Eankin was feeding. Galbreth was hauling grain away from the machine. York, an employé of the Mastins, was measuring the grain. This defendant in error was pitching from the stack, and he was an employé of Pampella. During the work, and at about 4 o’clock p. m. of the 16th of September, 1886, Jack Mastín was feeding and was taken sick, and called to Eankin to take his place. Eankin did so, and recollecting that he had not recently oiled the cylinder, and knowing that Jack Mastín was sick, called to the defendant in error, who was pitching grain from the stack to the feeder, to oil the cylinder. The machine in use was a vibrator, of the Nichols '& Shepherd pattern. The large iron wheel revolves rapidly, and when so revolving the exposed bevel wheel and cogs are imminently dangerous to human life and limb. The manufacturers of the machine make a strong iron shield to be placed over the wheel and cogs, to render it safe to oil the cylinder or to do other work about it. In operation, the straw naturally lodges on, over and about the wheel and cogs, and conceals them, and makes it necessary, when any one is about to oil the cylinder, to remove the straw, and this is generally done with the hand. The shield had become so impaired that it was impossible to fasten it, or it would require great extra work to do so. It seems to be admitted that when the shield was not on, the wheel and cogs were imminently dangerous, and there is no question but that during the two days threshing at Pampella’s, and at the time the defendant in error lost his hand, the shield was not on, and the wheel and cogs were uncovered, except as hidden by the straw. To oil the cylinder, one has to reach up and over the shield to get the oil cup, and when the shield is on it can be oiled without danger. When the shield is off, and one knows it, to avoid imminent peril, the oil can is reached in an opposite direction from that used when the shield is on. The defendant in error, having inquired, was told where the oil can was, and went to the side on which the large iron bevel wheel is situate, at a point where the tumbling-rods connect with the horse-power, and the wheel revolves rapidly in cogs on the end of the cylinder, attempted to brush away the straw covering up the wheel, when his hand was caught in the cogs of the bevel wheel and was mashed. He brought this suit to recover damages for the loss of his hand, and was awarded $1,331. The jury returned answers to special interrogatories as follows:
“1. Did not the plaintiff know, at and before the time he attempted to oil the cylinder, that the shield was off the bevel pinion? A. No.
“ 2. Did not the plaintiff know that it was dangerous, if it was dangerous, to attempt to oil the cylinder when the shield was off? A. No.
“3. Could not the plaintiff, in the exercise of ordinary prudence and care, have known that the shield was off? A. No.
“4. Would not the plaintiff have known that the shield was off if he had been ordinarily attentive to what he saw about the machine, and what he heard said by the defendants or others ? A. Plaintiff did not know it was off.
“ 5. How much damage, if any, do you allow on account of the physical and mental suffering of the plaintiff? A. $100.
“6. How much damage, if any, do you allow on account of the loss of plaintiff’s hand? A. $997.
“7. How much damage, if any, do you allow on account of plaintiff’s expenditures for medicine and surgical services? A. $130.
“ 8. What sum of money, if any, do you allow as exemplary damages? A. None.”
The admitted fact is that the uncovered bevel wheel was very dangerous. It is established by the evidence, and there is no controversy as to the fact, that the ownérs of the machine knew that it was uncovered, that they had been warned of the dangerous consequences, and that they were guilty of gross negligence for using it in that condition. It is equally clear from the evidence, and the jury so find, that the defendant in error did not know that the bevel wheel was uncovered and that the shield was not on. Now, on this state of facts, separate and apart from any contractual relations, or any question as to the attitude of these parties as master and servant, the operation of this machine in its dangerous condition imposed a duty on the owners and operators thereof toward all who were engaged in the work, or who by any possibility, in the discharge of duty or in the performance of labor, might be brought in contact with it, that was certainly disregarded. For it may be stated as a general rule, that where . -. . . any voluntary act may naturally result in the injury of another, the actor must see to it, at his peril, that injury does not follow, or he must respond in damages therefor, and this is true regardless of the motive or the degree of care with which the act is performed. (Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 id. 163; Cahill v. Eastman, 18 Minn. 324; Phinizy v. Augusta, 47 Ga. 260; St. Peter v. Denison, 58 N. Y. 416; Wilson v. New Bedford, 108 Mass. 261; Scott v. Bay, 3 Md. 431; Cooper v. Randall, 53 Ill. 24; G. B. & L. Rly. Co. v. Eagles, 9 Colo. 544.)
This rule applies to these plaintiffs in error in all its vigor. They operated the machine with the knowledge that the uncovered wheel was imminently dangerous to those working around it. They did this, too, after warnings that injurious consequences were liable to follow such use. The injuries resulting to the defendant in error were the natural and probable result of the use of this machine with the cogs and wheel in this uncovered condition. Its danger was foreseen and pointed out to the owners, and the duty 1 ' ' was imposed upon them to adopt every possible precaution to avoid such a consequence. It seems clear to us, under the uncontradicted evidence respecting the danger of operating the machine in such manner, and of the knowledge of the Mastins of the danger, and of the want of knowledge on the part of the defendant in error that the wheel was uncovered, that the right 4 ; & of recovery is clear and undoubted. It was an act of practical necessity that the machine should be oiled, as the business both of the Mastins and Pampella was to be ex pedited by it. The feeder, whose business or duty it was to oil when the other feeder was actively engaged at the mouth of the machine, was prostrate on the ground, sick and disabled. Anyone working about the machine, either for the Mastins or for Pampella, or for both, could be called upon to do this special work, but when called upon was entitled to have all the necessary protection to save him harmless while performing the special labor. We do not understand that there is any cast-iron rule that forbids a man who is engaged in pitching from the stack from attempting to oil the machine at the request of anyone whose duty it is to see that the machine is in proper working condition. The evidence in this particular case shows clearly that, if the shield had been on and the wheel covered, any person could have oiled the machine without any danger to life or limb; hence, the immediate, adequate and efficient cause of the injury is found in the fact that the wheel was negligently and knowingly left uncovered by these plaintiffs in error. Whatever intermediate acts may have been committed by Rankin or by other employés, the injury must rest for an efficient cause on this act of negligence of the plaintiffs in error. On general considerations growing out of the contract and the nature of the employment of the defendant in error, he was bound to do and perform, within reasonable limits, any ordinary act expediting the business in which all parties there present were engaged that might be requested or demanded of him. He was designated by some one in authority to pitch from the stack, and he was directed by one who had authority to feed the machine, and to see that it was running properly, and to oil the machine. Both of these acts and his faithful performance of them were necessary ones, and expedited the business of both the Mastins and Pampella, and resulted to their benefit. We do not understand that the defendant in error was either a volunteer or an intermeddler, in the common acceptation of the term. He was there as an employé of Pampella, to perform the labor assigned him, subject to the orders and directions of those who had charge of the various branches of the work. Pampella and the Mastins were associated together for a common purpose, and to do a particular part of the work. In the absence of some special controlling direction, the duty of the defendant in error was to do and perform all acts requested of him that were reasonable and he was capable of doing to expedite the associated effort. If the shield had covered the wheel, it would have been a very ordinary act to have oiled the machine when directed to do so by the person that all agree was charged with the duty of seeing that it was properly oiled; hence, we regard all this contention about the defendant in error being a volunteer or intermeddler as having no force or bearing. He was rightfully there. It was a part of his duty, under his contract of employment, to do and perform all ordinary acts of which he was capable, and which he was directed to do by those having charge of the work, that was necessarily included in its practical operation. Hence it seems that there is a direct responsibility to him by reason of his rightful presence there, and his lawful participation in the work on the part of the Mastins, independent of the inquiry as to whether he was an employé of the farmer or the owners of the machine.
It seems to be an established fact in this case that the operation of the machine with the uncovered wheel was imminently dangerous, and this is equivalent to saying that the owners of the machine were guilty of gross negligence in its operation. The great bodily harm of some one working about the machine without the knowledge that the wheel was uncovered was the natural and almost inevitable consequence of such gross negligence. The uncovered condition of the wheel imposed upon its owners the exercise of the highest degree of caution. This increase of duty arose out of the nature of the business and the danger to others incident to the operation of the machine. The duty of exercising great caution by the owners of the machine did not arise out of the contract with Pampella to do his threshing, but grew out of the wrong being done by the use of an uncovered wheel, known by them to be imminently dangerous. The owner of a horse and cart who leaves them un attended in the street is liable for any damage which may result from his negligence. (Lynch v. Nurdin, 1 Adol. & E. [N. S.] 29; Illidge v. Goodwin, 5 Car & P. 190.)
The owner of a loaded gun who puts it into the hands of a child, by whose indiscretion it is discharged, is liable for damages occasioned by the discharge. (Dixon v. Bell, 5 Maule & S. 198.) The general rule is, that damages for which a party is liable are those, and those only, which are the natural and necessary consequences of his acts. (Kellogg v. Chicago Rld. Co., 26 Wis. 267; Ryan v. N. Y. C. Rld. Co., 35 N. Y. 211.) There is this marked distinction between an act of negligence imminently dangerous and one that is not so: the guilty party being liable in the former case to the party injured, whether there was any relation of contract between them or not, but not so in the latter case. (Colegrove v. Harlem Rld. Co., 6 Duer, 410; Burk v. DeCastro, 11 Hun, 357.) Where contractors entered into a contract to put a cornice on a mill, the mill-owners to furnish the necessary scaffolding, and the scaffolding furnished, being defective, fell and killed an employé of the contractors, the mill-owners were held liable because the injury was the natural consequence of their negligence in constructing the scaffolds. (Coughtry v. Woolen Co., 56 N. Y. 128; Coole v. Dock Co., 1 Hilt. 437; Smith v. N. Y. C. Rld. Co., 19 N. Y. 130.) So, in this case, the injury to the defendant in error was the natural consequence of the gross negligence of the owners of the threshing machine in leaving the wheel with its imminently dangerous cogs uncovered. That it was dangerous to human life and limb, is unquestioned. That the Mastins knew it was, is conclusively established. Despite the warnings of friends and neighbors, they persisted in its use in this dangerous condition. The natural result of this gross negligence was the serious injury of the defendant in error. Their answer to his demand for damages is, that he was not their servant. This answer, addressed to a man who was there in the regular course of employment to aid the accomplishment of the very work for which the owners of the machine had brought it to the farm of Pampella, is not a sufficient one. His duty was to do and perform such acts as assisted in the accomplishment of the common design. He did not direct the work, or had no right to, or was not appointed or selected for that purpose. His duties were assigned by those who had the controlling authority. His duty was obedience to the directions of those in authority, or to those who seemed from the ordinary course of affairs to be in authority. In obedience to a direction, a request or a command by one who was in actual control of the machinery, he attempted to oil the cylinder. The act attempted appears to have been one of absolute necessity, requiring immediate attention. It was an ordinary act, unattended with danger, that any reasonably prudent man could perform without injury, if it had not been for the gross .negligence of the Mastins. Eankin, who made the request or gave the direction, was in sole charge of that part of the machinery about which the request was made and the direction given. He had been in charge for two days, with the knowledge, consent and approval of the owners of the machine. The writer of this opinion is clear in his conviction that, under these circumstances, Eankin was for all legal purposes the employé of the Mastins, in charge of this branch of the machinery, responsible for its successful operation, and fully authorized and empowered to do or cause to be done any act that was necessary for the accomplishment of that part of the work; that the defendant in error, by reason of his employment there, was subject to all reasonable orders and directions necessary to the safe conduct of the business by those in authority; that as a matter of law he was an employé of the Mastins to the same extent and to the same degree as if he had been directly employed by them; that the relation of master and servant was established between them by reason of his employment by Pampella to engage in the associated work of the Mastins and Pampella; that the Mastins are liable to him for injuries caused by their gross negligence because of said employment; and that they are liable both because they used this dangerous machinery, with the knowledge of its danger, and because they failed to exercise reasonable care to protect an employé. The instructions of the court complained of, being in substantial conformity to these views, are not erroneous.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
Christopher McNulty, a bachelor, owned the west half of the northwest quarter of section 25, in township 18, in range 16, in Osage county. On the 6th day of September, 1872, he conveyed this land to his brother, John W. McNulty, for the sum of $500, and the grantee was placed in possession of the premises, and exercised acts of ownership over the same. It seems there were three brothers then living — John W., the defendant in error in this case, Christopher, the grantor in the deed named, and Joseph, one of the plaintiffs in error. On the 30th day of June, 1876, John W. McNulty and wife made a deed to the land in controversy to Christopher McNulty for the sum of $500, which sum, it was claimed, was never paid. The grantor placed the deed in a bureau drawer in his own home, among his private papers, from which place it was taken several years afterward by the grantee, and on the 22d day of August, 1884, by him placed upon record without the knowledge or consent of the grantor. This action was brought on the 15th day of Decern ber, 1887, by John W. McNulty, to set aside this deed, executed by him and his wife to Christopher McNulty, (which he insists was never delivered,) and a deed subsequently executed by Christopher to his brother Joseph, conveying the same land. The case was submitted to the court at the November term, 1888, and the following special findings of fact and conclusions of law were made:
“special findings.
“1. This action was instituted by John W. McNulty, plaintiff herein, against the said defendants herein, Joseph McNulty and wife, on the 15th day of December, 1887, in said court.
“2. Said plaintiff and said defendant Joseph McNulty are brothers; the former being a resident, with his family, of Osage couuty, Kansas, and the latter being a resident of Johnson county, Kansas, and is the head of a family.
“3. One Christopher, or ‘ Chris.’ McNulty died in Johnson county, Kansas, on June 6, 1887, of consumption, at the residence of the said Joseph McNulty, who, as well as the plaintiff, was a brother of said decedent. The said deceased never having been married, he made his home from the year 1871 to date of his death, alternately, with his said brothers, John W. and Joseph, except when he was absent in California.
“4. Prior to September 6, 1872, said Chris. McNulty was the owner in fee of the west half (-¡-) of the northeast quarter (-(-) of section 25, township 18, range 16, in Osage county, Kansas, and on that day he executed and delivered to plaintiff, John W. McNulty, a warranty deed for said land, which deed was duly recorded on the 20th of September, 1872. Said deed contained a recital of a consideration of $500, and other than said recital there is no evidence of any consideration passing from said John W. McNulty to said Chris. McNulty for said land.
“5. In 1872, and for several years prior to that year, the said Chris. McNulty was engaged in business at Olathe, Kas., in company with one Charles Wagoner, and at the time said conveyance was made by said Chris. McNulty to said John W. McNulty the creditors of said firm of McNulty & Wagoner were pressing them for the payment of their debts, and said conveyance was made by said Chris. McNulty for the purpose of putting said land beyond the reach of the creditors of said firm.
“6. Immediately after the execution of said deed to him, said John W. McNulty took possession of said land, and continued in the possession thereof, and in the full enjoyment of all rents and profits thereof, up to and including the year 1884, and paid the taxes thereon from 1873 up to 1883, both years inclusive, and the first half of the taxes of 1884.
“ 7. On the 30th day of June, 1876, said John W. McNulty, his wife joining with him, in the presence of said Chris. Mc-Nulty, executed a warranty deed reciting a consideration of $500, conveying said land to said Chris. McNulty, which deed the said John W. McNulty, after the same was executed, retained in his own possession, and said deed was never, at any time, delivered by said John W. McNulty, or by any one for him or by his authority, to any one acting for him, and the said John W. McNulty never intended to deliver said deed to the said Chris. McNulty until the latter should pay to the former the consideration named in said deed.
“8. In the fall of 1883 said Chris. McNulty, who had been for several years in California, returned to Kansas, and spent the remainder of that year and a portion of 1884 at said John W. McNulty’s, and while living there, without the knowledge or consent of said John W. McNulty, he took said deed from among the private papers of the said John W. McNulty, and without any authority from him, on the 22d day of August, 1884, filed it for record in the office of the register of deeds of Osage county, state of Kansas, and said John W. McNulty had no knowledge that said deed had come into the possession of said Chris. McNulty until several weeks after it was recorded, and then only by learning that it had been recorded.
“9. Chris. McNulty himself, with the full knowledge of the said John W. McNulty, and without objection on his part, rented said land for the year 1885 to John W. McNulty, a son of said John W., who was living with his father, and took in payment of the rent a note from said John McNulty for $140; and afterward, upon leaving for California, he left said note with the said John W. McNulty, as his agent, to collect the same, and said John W. McNulty did collect said note, and out of the proceeds thereof paid the taxes on said land for the last half of 1884, and the first half of 1885, in the name of said Chris. McNulty, and sent the balance to said Chris. McNulty to California.
“10. In the year 1885, the said Chris. McNulty put the agency of said lands for the leasing thereof and collecting of rent for the year 1885 in the hands of one Peter Chevalier, with the knowledge and consent of said John W. McNulty; but no rents were collected for that year by the said Chris. McNulty or his agent, the tenant to whom said Chevalier rented said land having appropriated the crops and paid no rent to any person.
“11. In the year 1887, the said John W. McNulty rented said land as his own to his son Chris, for one-third of the crop, and that part of the rent share of the crops raised by said defendant was by him delivered to his father, and a part of said rent share was delivered by said tenant, with the knowledge of said John W. McNulty, to defendant Joseph McNulty.
“12. In the spring of 1887, said Chris. McNulty returned from California, and on the 25th day of March, 1887, he executed and delivered to said Joseph McNulty a warranty deed for said land, in which there is recited a consideration of $800, which deed was duly recorded on the 29th day of March, 1887. The consideration was paid by said Joseph McNulty for said land, and at the time said deed was delivered to him by said Chris. McNulty he knew that said John W. McNulty had never delivered said deed of June 30, 1876, unto said Chris. McNulty, and also knew how the latter had obtained possession of said deed. Said Joseph McNulty paid the last half of the taxes of 1885 on said land, and also the taxes for 1886 and 1887.
“13. When said Chris. McNulty returned from California in the spring of 1887, he held a note for $1,000, dated April 29, 1884, executed to him by said John W. McNulty; and some time after his return, and a short time before his death, John W. McNulty visited him at the residence of said Joseph McNulty, and while there the said Chris. McNulty surrendered and gave up the said note to said John W. McNulty.
“ 14. At a period between the date of the deed from John W. McNulty and wife to Chris. McNulty for the lands in controversy and the date of acquiring possession of said deed by Chris. McNulty, the said John W. McNulty gave a mortgage upon said lands and tenements for the sum of $400, which said mortgage has not been paid, nor has any portion thereof been paid; and that said mortgage was so given without the consent or knowledge of said Chris. McNulty at the time it was given.”
“CONCLUSIONS ON LAW.
“1. By the deed of September 5,1872, so far as the parties to this case are concerned, John W. McNulty, the plaintiff, acquired a perfect legal title to the lands in controversy in this action.
“2. Said John W. McNulty was not divested of the title so acquired by the deed of June 30, 1876, nor by the record of said deed.
“3. Said John W. McNulty did not ratify the act of said Chris. McNulty in taking into his possession and causing to be recorded the deed of June 30, 1876.
“4. The deed of June 30, 1876, from John W, McNulty to Chris. McNulty, and the deed of March 28, 1887, from Chris. McNulty to Joseph McNulty, the defendant, are null and void, and the plaintiff is entitled to have them so declared by decree in this action.
“5. The plaintiff is entitled to recover his costs in this action.”
The vital question presented in this case is whether the defendant in error ratified the act of his brother Christopher. McNulty in surreptitiously taking the deed, executed on the 30th day of June, 1876, from the bureau drawer where the grantor had placed it, and delivering the same to the register of deeds of Osage county for record, on the 22d day of August, 1884. It is evident from the testimony and the findings of the trial court that there was no delivery of the deed by the grantor. The delivery of a deed, being an essential requisite to effectually pass the title to real estate, the title to the land in controversy must have continued in the defendant in error, unless there was a subsequent ratification by him of the act of his brother in taking the deed without his knowledge. While a deed thus obtained is void, and possesses no greater validity than it would have if forged, still it may be ratified by the grantor after he has full knowledge of all the facts, by any words and acts of his which show a clear intention on his part that the deed should be regarded as properly delivered, and that the same conveyed the title to the property. (Tucker v. Allen, 16 Kas. 312.) The district court found as a conclusion of law that John W. McNulty did not ratify that act of his brother in taking into his possession and causing to be recorded the deed of June 30,1876. The correctness of this conclusion of law is challenged by the plaintiffs in error, who contend that it is not warranted by the evidence and the special findings of fact. We have carefully examined the facts bearing upon the question of ratification by the plaintiff below. It must be remembered that the transaction was between brothers, and there were some irreconcilable statements made by each one of them, but the following undisputed facts may be gathered from all of the evidence: The plaintiff below learned in a few weeks after his brother Christopher took the deed that it had been placed upon record; the matter was afterward talked over between him and his brother Joseph, and it was known by each how the deed was obtained. The next year after the deed had been obtained the land was rented to a son of the plaintiff below, and a note for $140 for the rent given, payable to the grantee, Christopher McNulty; and this note was delivered to the grantor for collection and was by him collected, and a portion of the amount was used in paying the taxes, in the name of the grantee, and the balance was remitted to him in California by his brother. In the year 1886 the land was rented, with the knowledge of the grantor, to a German, by an agent of the grantee. The plaintiff below acknowledged that his brother Christopher took the agency of this land from him and rented it to some one else for this year. One witness, who appears not to be related to the parties, testified that he rented the farm in 1887, for the year 1888; that he saw that some one had taken possession of the place in the early part of March of the latter year; that he went around and saw John W. McNulty, who informed him that his son was going to farm the place, and when informed that he had rented the place from Joseph McNulty, John W. McNulty replied that he had permission from his brother Christopher the year previous to rent the place, and had rented it to his son for one year, with permission to have it as long as he wanted it, and if he did not get written notice from Joseph he was going to hold over. Subsequently John W. McNulty stated to him that his son Christopher was going to hold the place; that Christopher’s third was as good as that of the witness to Joseph; that if a notice had been given he would have given it up. It appears that John W. visited his brother Christopher in 1887, a short time before his death, and was presented with a note of $1,000, and was informed by Joseph that Christopher had deeded him the land in controversy; and to this John W. made no objection. The plaintiff in error paid the last half of the taxes for 1885 and the taxes for 1886 and 1887.
Upon this evidence, the district court made the special findings of fact, supra. As a conclusion of law the court found, that John W. McNulty did not ratify the act of his brother in taking into his possession and causing to be recorded the deed of June 30, 1876. In this we think the , i mi • • i , ¶ court erred. Ihere was, in our mdgment, such a ? # J , & _J state of facts as showed a ratification. The court found that Christopher McNulty, with the knowledge of his brother John W., and without objection upon his part, rented the land in controversy for the year 1885, and took a note for $140, which he left with his brother, who afterward collected the note and accounted to his brother for the proceeds. The evidence upon which this finding is based indicates, to our minds, that there was a recognition upon the part of John W. McNulty of his brother’s right to the land. He received the rents for his brother, and thus recognized his title; which could only come through the delivery of the deed of June 30,1876. Having once acknowledged and recognized the title of his brother, we do not think he could afterward be heard to say that his conduct and statements were the result of a doubt in his mind as to his legal rights. The grantor cannot recognize the possession of a deed as valid for some purposes, and then disclaim it as being nugatory for all others. (Cotton v. Gregory, 10 Neb. 125.) John W. knew that his brother had obtained possession of the deed and placed it upon record, and for three years thereafter he recognized his brother’s title to the land. It has become an axiomatic rule of law, which requires no argumentative demonstration or authority to support it, that that to which a person assents is not esteemed in law an injury. We think it clear from the evidence that there was no delivery of the deed of June 30,1876, in the first instance, but we base our decision upon the fundamental truth that a delivery may be made good by a subsequent assent, though originally invalid for the want of it, upon the well-settled principle that a subsequent ratification may have a retrospective effect. (3 Washb. Real Prop. 305; Holbrook v. Chamberlin, 116 Mass. 155.) While it is true that where possession has been obtained surreptitiously of a deed which has never been delivered, it requires an express ratification, or' at least an acquiescence, after knowledge of all the facts, of such a character as would create a presumption of an express ratification, to give force and effect to the deed; (1 Devi. Deeds, § 268;) still we are of the opinion that the evidence before the district court indicated such a ratification and acquiescence upon the part of the plaintiff below as to bind him, and to show that he recognized his brother’s title after he had full knowledge of all the facts.
We think the second and third conclusions of law were not authorized by the evidence, or supported by the special findings of fact, and therefore recommend a reversal of the judgment, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
December 13, 1883, the defendant company issued its policy of insurance to the plaintiffs in the sum of $3,000 upon their frame elevator and machinery therein. November 20,1884, it issued its policy to the plaintiffs in the sum of $1,000 additional insurance upon the same property. Each of these policies was to run for the period of five years from date. The plaintiffs paid the defendant, as cash premium, $47.50 on the first policy, and also gave the defendant their premium note for the sum of $750; and on the second policy they paid the defendant a cash premium of $15, and gave their premium note for $250. On the night of July 7,1886, the property so insured was entirely destroyed by fire. This action was brought to recover the amount of said policies as the loss suffered thereunder. On the trial of the case the defendant admitted the execution and delivery of the policies sued on; the total destruction of the property insured; that it was of the value of $8,000; and that the plaintiffs were entitled to a judgment for the amount claimed against the defendant, unless the defendant shows a good defense to the plaintiffs’ claim, as follows: The defendant shows that it was organized Under and pursuant to the provisions of the act of the legislature approved March 6, 1875; that said act was repealed by the act of March 7,1885, but that the repealing act gave the defendant and other companies the right to continue business provided they complied with the provisions of the later act by the 1st of December following; otherwise they should forfeit their charters. The defendant company failed to comply with the provisions of the new law, and thus forfeited its charter. Now the defendant claims that the repeal of the act under which it was organized and did business, and its failure to comply with the provisions of the repealing act, operated to cancel all its outstanding policies. We do not think so. The legislature of 1885, in the passage of the bill of March 7 of that year, simply provided that mutual fire insurance companies, like the defendant company, should forfeit their charters and cease to issue policies or do new business unless they complied with the provisions of that act within the time indicated therein. The legislature did not intend nor attempt to cancel any policies of such companies outstanding at the time. Such policies were contracts, in which the holders had an interest that could not be destroyed by legislative action.
For a second defense, the defendant alleges that the directors of the defendant company, at a meeting of the policy-holders, December 1, 1885, of which the plaintiffs had notice, but which they failed to attend, decided to quit business, and appointed W. B. Brayman, attorney of the company, to close up the affairs of the company, directing him to notify policyholders that the company would not be liable for any loss occurring after December 31, 1885, which notice Mr. Brayman says he sent to the plaintiffs. Counsel for plaintiffs argues in his brief that Brayman’s evidence does not show that he sent notice to the plaintiffs. From our view of other matters connected with this alleged defense, it is not very material whether he sent the notice or not; hence we accept the defendant’s position that such notice was sent to the plaintiffs as alleged. Having decided to close up the business of the company, the defendant claims that it had a right, under the following provisions contained in each of the policies sued on, to cancel them: “This policy, because of increased risk, or for any other cause, may be canceled, on the company giving notice thereof and returning a ratable proportion of the original cash premium to the assured for unexpired time.” Conceding that defendant gave plaintiffs notice that it had canceled their policies, to take effect on and after December 31, 1885, there is nothing in the record which shows that any of the original cash premium paid by the plaintiffs when they secured their policies was returned to them. The defendant was not authorized by the provision in the policies to cancel them except upon condition that it returned to the plaintiffs the ratable proportion of the original cash premium. Counsel for defendant notices this point in his brief, and says that no complaint was made because a part of the premium was not returned. With the agreement which was made a part of the case on the trial, it was not necessary for the plaintiffs to complain of this. The defendant admitted that the plaintiffs were entitled to judgment against it for their claim unless it showed a, good defense. Under this agreement, if the defendant intended to rely upon a cancellation of the policies as matter of defense, it was the duty of the defendant to show that such cancellation was authorized. There is nothing in the record to show that the premium notes given by the plaintiffs, amounting to the sum of $1,000, were returned to them. We would think these must be returned to the plaintiffs if their policies were to be canceled. If the company by its say so, and notice thereof, cancel all its policies, it could have little or no use for premium notes, and certainly no use for them after the cancellation of the policies took effect, unless in the meantime, before the cancellation of the policies took effect, it should suffer a loss or losses, and then only for the purpose of assessments to pay said loss or losses.
We do not think the defendant’s action in relation to the cancellation of the policies sued on in this case operated to cancel said policies, and therefore this defense is not good. We therefore recommend that the judgment of the district court be reversed, and the case remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
Bradley, Wheeler & Co. brought this action in the district court of Sherman county agaifist C. P. and H. W. L. Russell, to recover the value of a frame building which, it was claimed, they had converted to their own use. The case was tried by the court and a jury, and the plaintiffs recovered a judgment for the sum of $350 against C. P. Russell. The material facts are: Bradley, Wheeler & Co. had an agent at Sherman Center by the name of Swayne, who had become indebted to them; and on the 13th day of August, 1887, he executed to them a mortgage upon some town lots in Sherman Center, upon which stood the frame building in controversy. In the month of December, 1887, Swayne, without the knowledge of the plaintiffs, moved the building from Sherman Center to Goodland. Russell Bros, were engaged in the banking business at the latter place, and were acting as the collecting agents for Bradley, Wheeler & Co. On December 13,1887, Russell Bros, wrote Bradley, Wheeler & Co. that Swayne had removed a part of his building to Goodland. In reply to this letter, Bradley, Wheeler & Co. wrote the following to Russell Bros., under date of December 16, 1887:
“We mailed you last week a mortgage on Swayne’s property at Sherman Center, to be exchanged for mortgage on his Goodland property, which he got in exchange for his Sherman Center location, and which he agreed to pay us when he made the change. We hope you will attend to this promptly, and let us have mortgage as soon as possible.” »
On December 30, 1887, Russell Bros, through their assistant cashier, wrote the following letter to Bradley, Wheeler & Co.:
“ Rtjssell Bros., Bankers.
“Goodland, Sherman Co., Kas., 12-30-1887.
“Bradley, Wheeler & Co. — Gentlemen: Your favor of the 24th inst. received, with inclosure as stated, and same entered for collection. Your mortgage against Swayne we have handed to attorney W. K. Brown for attention. Understand there are some technical difficulties.
Yours respectfully, J. C. F. McKesson.”
On the 3d day of January, 1888, Russell Bros, took a bill of sale of the building in controversy. This bill of sale was filed for record on the 23d day of January following.. Russell Bros, also held a real-estate mortgage upon the lot upon which this same building was situated. This mortgage was dated December 16, 1887, and filed in the office of the register of deeds on the same day. On the 23d day of February, 1888, Swayne executed a bill of sale to the plaintiffs below for the same building, describing it as the building upon which Bradley, Wheeler & Company had a mortgage when it stood in Sherman Center, and was sold by Swayne as a partial settlement for said mortgage. This bill of sale was filed for record on the same day, and Bradley, Wheeler & Company took immediate possession and stored their goods in said building. Sometime after this, Russell Bros., through their agents, took forcible possession of the building in controversy, moved it upon one of their own lots, and have since held it.
It is first claimed by the plaintiffs in error that, because the petition alleged that the plaintiffs owned the building in June, 1888, it was error to show title to the property in dispute some time prior, in the year 1887. There was no error in this; it was perfectly competent for the plaintiffs below to establish by competent evidence their title to the building in controversy prior to the time alleged in the petition. It would be too narrow a construction of the pleading to limit the inquiry of ownership to the time alleged in .the petition.
It is next urged that there is no evidence that Russell Bros, accepted the agency for Bradley, Wheeler & Co., in looking after its mortgage against Swayne; and that Russell Bros, could not act for the plaintiff below, on account of adverse interests. It was established that Russell Bros, were the collecting agents for Bradley, Wheeler & Co.; that as early as the 9th day of December, 1887, the latter made inquiry of the former concerning their claim against Swayne, and on the 13th of the same month Russell Bros, wrote the company that Swayne had moved a part of his building to the new town, which was the county-seat of Sherman county. This was before they had taken their real-estate mortgage. Three days later Bradley, Wheeler & Co. wrote the defendants again, saying they had sent the Swayne mortgage to them the week previous, and urged upon them the necessity of prompt attention. On the 30th day of December they reported to Bradley, Wheeler & Co. that they had handed the mortgage to an attorney for attention, saying that they understood there were some technical difficulties in the way. This certainly was some evidence to show the relation existing between the par ties. It is not our province to pass upon the weight of evidence; that has already been done by the jury. We think there was some evidence showing that the plaintiffs in error accepted the note and mortgage of defendants in error as their collecting agents, and should have guarded their interest. If they were not in a position to do this, they should have returned the claim at once, and not held it until they attempted to acquire an adverse interest in the very property they knew Bradley, Wheeler & Co. sought to subject to the payment of their debt. The law requires the utmost good faith and loyalty upon the part of the agent in the performance of every duty which he owes to his principal.
The claim is made that the instructions of the court were misleading. No exceptions were taken to the charge of the court, or any portion of it.
Our attention is called to the fact that the district court entered judgment against H. W. L. Russell, when the record shows that no service was made upon him and no appearance or answer was filed in his behalf. The record was modified in this particular, as appears from a corrected journal entry on file in this court, from which it appears that the judgment is only against C. P. Russell.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action for an injunction, brought upon the relation of the county attorney, against the board of county commissioners of Harper county. The petition alleged that on the 9th day of January, 1891, the board of county commissioners entered into a contract with J. R. and S. C. Hammond, the proprietors of the Anthony Journal, by the terms of which it was agreed that, for the period of one year then next ensuing, all the county printing should be done by the Hammonds, at legal rates; that at the time of the making of such contract the board of county commissioners had bids from two other newspaper publishers to do the county printing at much less than legal rates. It was claimed by the relator that the contract was void, for the reason that the board of county commissioners had no authority to make the same. The defendants below filed a general demurrer to the petition, which was overruled by the district court. The defendants elected to stand on their demurrer and declined to plead further to the petition, and objected to the granting of a temporary injunction, for the reason that if the plaintiff was entitled to any order, it was a permanent injunction. A temporary injunction was granted; and this is assigned as error, together with the overruling of the demurrer of the defendants to the petition of the plaintiff below, upon the ground that the petition did not state facts sufficient to constitute a cause of action against the defendants, or to entitle the relator to any relief.
Was the board of county commissioners authorized to make a contract at legal rates? Paragraph 1655 of the General Statutes of 1889 reads: “The boards of county commissioners of the several counties of this state shall have exclusive control of all expenditures accruing either in the publication of the delinquent tax list, treasurer’s notices, county printing, or any other county expenditures.” This section originally contained this proviso: “ Provided, That all county printing shall be let to the lowest responsible bidder;” but in 1872 it was amended by dropping off this proviso. By the statutes of 1868, the commissioners had the exclusive control of the county printing, with the condition that it must be given to the lowest responsible bidder. The legislature removed this restriction in 1872, but the board of county commissioners still had exclusive control of the county printing. In construing this section of the statutes, in the case of Quigley v. Comm’rs of Sumner Co., 24 Kas. 293, Mr. Justice Brewer said:
“Referring again to the section defining the powers of county commissioners, we find that it gives them “exclusive control of all expenditures.’ Does this mean simply that they are to audit accounts? Or does it not also' give them power in the creation of debts? It seems to us, the latter. It grants general control as to county expenditures, both as to items, amounts, and parties.”
In Mooers v. Smedley, 6 Johns. Ch. 28, which was a case to enjoin the supervisors of a town from the allowance of certain bounties for wolf scalps to non-residents of the town, and alleging that the bounties were confined to residents, and that by such action of the supervisors the tax of the plaintiff was greatly augmented, the law gave the supervisors authority “to examine, settle and allow all accounts,” etc. Chancellor Kent said: “I cannot find, by any statute, or precedent, or practice, that it belongs to the jurisdiction of chancery, as a court of equity, to review and control the determination of the board. . . . This power implied and required the exercise of sound judgment. . . . This is not the case of a private trust, but the official act of a political body ; and in the whole history of the English court of chancery there is no instance of the assertion of such jurisdiction as now contended for.” (Walton v. Develing, 61 Ill. 201; Darst v. The People, 62 id. 306.) It is important to observe that courts of equity do not interfere by injunction for the purpose of controlling the action of public officers constituting inferior, quasi-judicial tribunals, such as boards of supervisors, commissioners of highways, and the like, on matters properly pertaining to their jurisdiction; nor will they review and correct errors in the proceedings of such officers. (High, Inj., § 1311; Mechem, Pub. Off., §991.)
Section 21 of article 2 of the constitution provides that “ the legislature may confer upon tribunals transacting the county business for the several counties such powers of local legislation and administration as it shall deem expedient.” Under this power the legislature has given to the board of county commissioners the exclusive control of the county printing. The statute fixes the legal rates for such printing, so that the only existing restriction is that the printing cannot be let at more than the amount fixed by law. The only question, therefore, is whether or not there should be an interposition upon the part of the courts when it appears that the printing might have been done for a less sum. The board of county commissioners not only possesses the discretionary power, but the statute has given to that tribunal the exclusive control over the subject-matter; and, in the absence of actual fraud, courts cannot interfere with such discretion and power.
As we have seen, up to 1872 the statute required that the county printing should be let to the lowest responsible bidder; it was then changed by striking out this proviso. So that the control was practically unlimited, except as to the compensation, which was fixed bylaw. Before 1872, they must (since, they may) let to the lowest bidder. Taking away a limitation in the one direction does not place a limitation in the opposite. Taking away a restriction upon full discretion leaves the discretion full and free, and does not superimpose another restriction. (Quigley v. Comm’rs of Sumner Co., supra.)
The case at bar is different in principle from the case of National Bank v. Comm’rs of Barber Co,, 43 Kas. 648. In that ease the board made another contract; in this no effort has been made by the board to change the terms of the agreement, or to designate any other paper in which the county printing should be done; hence we think that, in the absence of any fraud or collusion, the determination of the board is conclusive in all matters wherein it has the exclusive power, and such discretionary power has been exercised with an honest purpose and within the authority conferred upon it by the constitution and the laws enacted thereunder; and the courts have no authority to interfere by injunction so as to control such discretionary power, or restrain the board from the payment of claims for printing already done under contract.
We think the preliminary injunction should be discharged.
We recommend a reversal of the judgment of the district court.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action brought by M. C. Tubbs in the district court of Greenwood county against the Fort Scott, Wichita & Western Railway Company, for damages by fire, caused, as is claimed, by the negligence of the defendant in the operation of its railroad. The plaintiff alleged that he owned a half-section of land which he used exclusively for the grass grown thereon for hay, and expected to use all of said land for that purpose except about 40 acres, as such land was well adapted for the growing of hay. The negligence of the defendant is stated as follows:
“ Plaintiff says that defendant’s line of railway runs through, over and across the north part of said plaintiff’s land described, and that on the 29th day of October, 1887, the said defendant, contrary to its duty, and negligently and carelessly, omitted to keep its right-of-way on plaintiff’s land and on the adjoining land clear and clean of dry grass, weeds, and other combustible material, and on the contrary, negligently and carelessly allowed dry grass, weeds and other combustible material to accumulate and remain on said right-of-way of said defendant’s railway, and neglected to plow a fire-guard along said line of railway, and on said right-of-way across plaintiff’s land, and across the adjoining land, to prevent the spread of fire, or damage therefrom, in the operation of its said line of railroad; that on the 29th day of October, 1887, the defendant, in operating its line of railway, and running its engines and cars on said line of railway in Greenwood county, Kansas, by and through its servants, employés, and agents, in thereby operating and running said cars and engines thereon, in said county and state, negligently and carelessly permitted said engine of defendant to east out or emit sparks and coals of fire therefrom, into the dry grass and weeds and other combustible material on defendant’s right-of-way, thereby setting out fire and setting fire thereto, and carelessly and negligently allowing the fire thus set out on defendant’s right-of-way to escape' and spread therefrom to other lands, and finally to plaintiff’s land and meadow, thereby burning and injuring plaintiff’s meadow, greatly damaging plaintiff, in the sum of $1 per acre, or the total sum of $275, and without any fault or negligence on the part of this plaintiff, on account of said fire.
“Wherefore, plaintiff asks judgment against defendant in the just sum of $275 and costs of suit, and for $50 attorney fees, and all other proper relief.”
The railway company filed a motion to make this petition more definite and certain: (1) By stating wherein the meadow was damaged; (2) by stating how much, if anything, plaintiff claimed for the burning of the hay growing upon the land ; (3) by stating whether damages were claimed for the burning of the hay growing upon the land at the time of the fire; (4) by stating in what manner the land was damaged, if damages were claimed for injury to the realty. This motion was overruled, and exceptions taken. The defendant then filed a general demurrer to the petition, which was also overruled. The defendant afterward filed a general denial, and also set up contributory negligence. At the January term, 1889, a trial was had by the court and a jury, and a verdict was returned in favor of the plaintiff for $85. After the return of the verdict, over the objection of the defendant, the plaintiff offered evidence to the court as to the value of attorney’s fees in the case, and the court allowed the plaintiff $50 as such attorney’s fees. Judgment was rendered for the plaintiff for $135 and costs. A motion for a new trial was filed and overruled.
Six questions are presented by this record: 1st, Did the court err in overruling the motion of the defendant to require the plaintiff to make his petition more definite and certain ? 2d, Did the court err in its instructions to the jury? 3d, Did the court err in refusing certain instructions asked by the de fendant? 4th, Did the court render judgment upon a cause of action not made by the pleadings? 5th, Should judgment have been rendered upon the special findings in favor of the defendant? 6th, Did the court err in rendering judgment against the defendant for attorney’s fees?
We must answer each one of these questions in the negative, except the last. As to the first, the petition was, we think, sufficient, under ¶ 1321 of the General Statutes of 1889. It might have been more general as to the allegations of damages than it was, and still been good under the statute.
As to the instructions given with reference to the measure of damages, complaint is made of the following paragraph:
“In case you find from the evidence that the plaintiff is entitled to recover in this case, you are instructed that the damages to be awarded him should be such as adequately to compensate him for the actual loss or injury sustained; and in determining the amount of injury, you should consider the nature and character of the land in controversy, the uses to which it was put, the difference, if any, in its rental value; and you may also allow interest on such damage, if any you find, from the date of the loss to the present time, at the rate of 7 per cent.”
It is urged that this instruction was misleading; that under -no circumstances would the plaintiff be entitled to recover the difference between the value of the land before and after the fire and also the difference in the rental value. Perhaps the decrease in the rental value of the land forms the better and more certain rule by which the damages may be estimated; still the principle has been established, that where the injury is done to the real estate itself, the damages may be measured by the difference in the value of the land before and after the trespass; and, in several cases, the amount necessary to restore the property to the condition in which it was before the trespass is a proper measure of damage. (5 Am. & Eng. Encyc. of Law, p. 36; Wiley v. Hunter, 57 Vt. 479; Carli v. Depot &c. Co., 32 Minn. 101; Vermilya v. Chicago &c. Rly. Co., 66 Iowa, 606.) It is evident from the amount of the verdict that the jury were not misled by the instruction, and hence no prejudicial error was committed.
Upon the third question, complaint is made that the court should have instructed, as requested by the defendant, that the plaintiff could not recover unless the injury complained of was permanent in its nature, although he may have sustained other damages as the result of the fire. The plaintiff did not allege that his meadow was permanently damaged, and the evidence was to the effect that it would take from one to three years to restore the grass to the condition it was in before the fire; so it would not be proper to characterize the injuries as permanent. We think the instruction was properly refused.
As to the fourth question, it will be observed, by a reference to the allegations of this petition, that the plaintiff alleged carelessness in failing to keep the right-of-way free from grass and other combustible material, and the negligence of the servants of the railway in operating and running its cars and engines. As to the allegation of negligence, the jury made the following special findings of fact:
“Ques. 1. Did the fire escape by accident? Ans. Don’t know.
“ Q. 2. Did the fire escape because of the negligence of the employés of defendant while operating defendant’s train ? A. We do not know.
“Q. 3. Did the fire escape by reason of the engine being out of order? A. We think so.
“Q. 4. State specifically what negligence defendant was guilty of, upon which the jury base the verdict — whether defective engine, condition of right-of-way, or negligence of its servants in operating the train, or all. State fully in what such negligence, if any, consisted. , A. By defective engine, in allowing coals of fire to drop from fire-box and ignite the dry grass on the right-of-way.”
The point is now made that the jury specially found that the negligence upon which the verdict is based was a defective engine, and there being no allegation of the kind in the petition, the judgment of the district court was rendered upon a case not made by the pleadings. The case of St. L. & S. F. Rly. Co. v. Fudge, 39 Kas. 543, is relied upon as being precisely in point. If the present statute (¶ 1321 of Gen. Stat. of 1889) had been in force when the injuries in that case occurred, or when that action was brought, or when the issues in that action were made up, or if the jury had returned the same answers in this case that were returned in that, the posi^on °f counsel for plaintiff in error might be correct. But in all these particulars this case differs fr0m that. The Fudge case was decided, or at least intended to be decided, under the old law and not under the present law, as embodied in the aforesaid ¶ 1321 of the General Statutes of 1889. And further: In the Fudge case the jury said that the fire escaped either by the negligence of the servants of the railway company or a defect in the engine; in this case, by defective engine, in allowing coals of fire to drop from the fire-box and ignite the dry grass on the right-of-way. The defect in the engine might have been harmless if there had been no dry grass on the right-of-way. Coals, ashes and cinders are removed from the fire-box of engines upon the right-of-way, but this is usually done where there is no combustible matter to be ignited. The simple dropping of coals from the fire-box might not be a defect in an engine. We think there is sufficient in the special findings, taken in connection with the general findings of the jury, to bring the verdict and judgment within the first paragraph of plaintiff’s petition.
As to the fifth question, the plaintiff in error contends that the answers of the jury establish the fact that the railroad company was not guilty of the negligence alleged in the petition. This position, as we have seen, is not tenable, for the reason that the coals of fire dropped from the fire-box and set fire to the dry grass on the right-of-way. It is further urged, that the findings show that the plaintiff was guilty of contributory negligence, for the reason that he did nothing to prevent the spread of fire upon his land. Where a party uses his land as a reasonably prudent man should, and for the purposes for ** is adapted, he is not chargeable with contributory negligence for a failure to take precautions against the negligence of a railway company. (8 Am. & Eng. Encyc. of Law, 16.) Chapter 155 of the Laws of 1885 established the rule that the occurrence of a fire caused by the operation of a railroad is prima facie evidence of negligence; so that a mere finding of the jury that the plaintiff did nothing to protect his land would not make him guilty of contributory negligence. In Philadelphia &c. Co. v. Hendrickson, 80 Pa. St. 182, Chief Justice Agnew stated the rule under the common-law liability as follows:
“The conclusion from the case is very clear, that a plaintiff is not responsible for the mere condition of his- premises lying along a railroad, but in order to be held for contributory negligence must have done some act or omitted some duty which is the proximate cause of his injury, concurring with the negligence of the company. Farmers may cultivate, use and possess their farms and improvements in the manner customary among farmers, and are not bound to use unusual means to guard against the negligence of a railroad company; indeed, are not bound to expect that the company will be guilty of negligence.”
The same court subsequently held —
“ That it was not contributory negligence for the owner of land along the line of a railroad to allow the accumulation of leaves, brushwood and other rubbish on his property. Such an owner of property must run the risk of fires necessarily following the lawful and proper use of the railroad company’s locomotives; but that he must guard, in any way or by any means, against the improper or unlawful use of locomotives, is a proposition that cannot be sustained.” (Philadelphia &c. Co. v. Schultz, 93 Pa. St. 341.)
We are not prepared to say that this would be the correct rule in states subject to prairie fires, but it shows the extent to which some courts have gone upon the question of contributory negligence. In this case we are clearly satisfied that the findings of the jury did not establish contributory negligence.
The last question we shall have to answer in the affirmative. After the jury had returned a verdict the plaintiff asked the court to assess the amount plaintiff was entitled to as attorney’s fees. This was error. The question of attorney’s fees was one of the issuable facts in the case, and should have been submitted with the other facts to the jury and been determined in the same way. (Mo. Pac. Rly. Co. v. Merrill, 40 Kas. 404; Ft. S. W. & W. Rly. Co. v. Karracker, 46 id. 511.) It is recommended that the judgment of the district court be modified by striking out the $50 allowed as attorney’s fees, that the judgment for $85, based upon the verdict of the jury, be affirmed, and that the costs of this court be equally divided between the parties to this action.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
D. C. Lindley brought this action against the railroad company to recover damages for personal injuries alleged to have been sustained while traveling on a stock train. The first trial of the case resulted in a verdict in his favor, but proceedings in error were prosecuted, and the judgment of the district court was reversed, and the cause remanded for a new trial. (Railroad Co. v. Lindley, 42 Kas. 714.) "When the case was called for trial the second time, a jury was impaneled, after which the plaintiff by his counsel stated his case to the jury, and the evidence by which he expected to sustain it. He then offered in evidence a deposition which had been taken, when the defendant objected to the reading of the same, for the reason that the amended petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, and for the further reason that the statement made to the jury shows that the plaintiff was guilty of such contributory negligence as would preclude a recovery against the defendant. The objection was sustained by the court, and the jury discharged. The plaintiff brings the case here upon a transcript of the record, asking a review and a reversal of the ruling of the district court.
The first question presented is, whether the court may dispose of the case upon the statement, made by the plaintiff in opening his case. Such a statement is a part of the procedure of the trial. The code provides that, when the jury is sworn, the plaintiff or party who has the burden of proof may proceed to state his case to the jury, and the evidence by which he expects to sustain it. (Civil Code, § 275.) If the statements or admissions then made are such as to absolutely preclude a recovery, it would be useless to consume further time or to prolong the trial. The court is warranted in acting upon the admission of the parties the same as upon the testimony offered; and, as it may sustain a demurrer to the evidence of the plaintiff and give judgment against him, it would seem that when he stated or admitted facts which were fatal to a recovery the court might close the case at once. The same question arose in like manner in Oscanyan v. Arms Co., 103 U. S. 251. Justice Field, who pronounced the judgment of the court, stated that—
“ The power of the court to act in the disposition of a trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced. The question in either case must be whether the facts upon which it is called to instruct the jury be clearly established. If a doubt exists as to the statement of counsel, the court will withhold its directions, as where the evidence is conflicting, and leave the matter to the determination of the jury. In the trial of a cause the admissions of counsel, as to matters to be proved, are constantly received and acted upon. They may dispense with proof of facts for which witnesses would otherwise be called. They may limit the demand made or the set-off claimed. Indeed, any fact bearing upon the issues involved, admitted by counsel, may be a ground of the court’s procedure, equally as if established by the clearest proof. And if, in the progress of a trial, either by such admission or proof, a fact is developed which must necessarily put an end to the action, the court may, upon its own motion, or that of counsel, act upon it and close the ease.”
If the statement made to the court and jury by the plaintiff showed beyond'dispute that the injuries which he received were the result of his own negligence, he could not recover anything from the defendant, and it would have been idle to have proceeded further with the trial of the cause. It is contended, it is true, that the statement made contained no fatal admission or any statements which justified the action of the court; but, unfortunately for the plaintiff, the statement is not found in the record. It might have been preserved by a bill of exceptions or in a case-made, but neither has been done. There appears to have been an attempt to make the statement a part of the record, as there is attached to what purports to be the statement a certificate made by the official stenographer of the district court. This certificate is unavailing. Such a statement can only be made a part of the record through a bill of exceptions settled and signed by the court, and it is not contended that this has been done. A certificate has been made by the judge that the statement appended to the record is a true and correct transcript, of the same; but it is not the province of the judge to authenticate a transcript of record. If the court had allowed a bill of exceptions containing the statement, and made the same a part of the record, it would have been the province of the clerk, and not of the judge, to have authenticated a transcript of the same. It follows that the statement is not before us for consideration, and therefore the ruling and judgment of the district court must be affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action for the recovery of lot 4 in block 77, in Arkansas City, commenced in the district court of Cowley county, but tried on a change of venue in Butler county. The plaintiff below claimed title under the following state of facts: The lot in question was a part of the town-site of Arkansas City, which was entered by the probate judge of Cowley county, on the 15th day of July, 1871, and deeded by him to the Arkansas City Town Company,, on the 2d day of October, 1871. A patent was issued May 1, 1873. The Arkansas City Town Company was chartered July 13, 1871, and the term of existence was fixed at the period of 10 years. Jacob Stotler was a member of the town company and a stockholder. As such stockholder, he received two certificates from the town company, which were the same, except as to the number, one of which reads as follows:
“No. 270. — Arkansas City Town Company. — This certificate of stock entitles the holder, Jacob Stotler, to one share of seven lots in Arkansas City, Cowley county, Kansas, and to receive a good and sufficient warranty deed for the several lots as soon as the company shall receive title to the town-site and shares shall be drawn.
H. B. Norton, President.
W. M. Sleeth, Secretary.
“Arkansas City, Sept. 6, 1871.”
Previous to the drawing, Jacob >Stotler sold and assigned his interest in the certificate to Solomon H. Dodge, and made the following indorsement thereon:
“For value received, I hereby transfer and assign the within certificate to Solomon H. Dodge.
(Signed) Jacob Stotler.”
This assignment was recognized by the town company ; and, on the 28th day of October, 1871, Dodge was notified by its secretary of the drawing, and that certificate numbered 270 had drawn lot 4, in block 77, with others. Some time in the year 1883, Dodge delivered his certificates to the plaintiff in this action, with a request to procure a deed for the lots drawn; and in February, 1883, the plaintiff applied to the secretary of the town company for such deed, but failed to obtain it, for the reason that the secretary regarded the corporation as extinct by the limitation in its charter. Solomon H. Dodge died on the 23d day of May, 1886, leaving two heirs, who conveyed by quitclaim deed to the plaintiff all their interest in the lots drawn by both certificates. A complete record was made of the drawing, but opposite the lots drawn by the certificates issued originally to Stotler and assigned to Dodge no name was written to indicate the person entitled to the deed for such lot. H. B. Norton was the only president of the Arkansas City Town Company, and he removed to California in 1874 or 1875, and died there in 1884.
The defendant below claimed title by possession acquired on the 10th day of March, 1885, first, under a tax deed, dated May 15, 1876, to F. Gallotti; second, by a sheriff’s deed, dated June 3, 1879, based upon the foreclosure proceedings of a mortgage given by Gallotti to F. J. Chapel; third, by virtue of a tax deed executed to C. M. Scott, September 14, 1883, and recorded September 22 following, holding title by intermediate coriveyance from the grantees. The defendant, with those under whom he claims, paid all of the taxes upon the lot in controversy, except the taxes embraced in the two deeds. The defendant entered into possession of the lot on the 10th day of March, 1885, and has ever since been in the actual and exclusive possession, and has made lasting and valuable improvements upon the same, which were completed more than one year before this action was brought. Previous to March 10, 1885, the lot in question was vacant and unoccupied, and never was in the possession of Stotler or Dodge. The first tax deed under which the defendant below claimed was void on its face; and it was established that the second tax deed was made by the county clerk in express violation of the order of the board of county commissioners. The taxes had been previously paid, and the board had declared the sale invalid, and ordered the clerk not to convey the same, and the county treasurer was authorized to refund the taxes and penalties paid. The court below found for the defendant, and quieted the title in him. The plaintiff in error claims that, under the facts as found by the district court, he had a perfect equitable title to the lot in question, and brings the case here upon the findings of the court, and asks a reversal of the judgment. The tax deeds under which the defendant claimed title were void; the first deed, because the lots included therein were not contiguous or adjacent and were all sold and deeded together. The second deed was void for two reasons: First, the taxes for which the lot had been sold had been paid; second, the clerk had been ordered not to make a deed on account of the erroneous sale, and it was voidable because the final notice was defective; hence, the defendant was an occupant under two void tax deeds.
Do the findings of the court establish such an equitable ti- tie in the plaintiff in error as authorized a recovery of the lot in question? The legal title to the lot was in the Arkansas City Town Company; it had issued certificates which had been duly assigned by the holder to Dodge and by Dodge’s heirs the interest in such certificates had been quitclaimed to the plaintiff in error. The only thing lacking was a conveyance from the town company to the plaintiff in error, to make his title complete. Before he procured a deed, the corporation had expired. The certificate recited that the original holder was entitled to a sufficient warranty deed for the several lots as soon as the company received a title to the town-site and the shares should be drawn. From the findings, it appears that the town company obtained the title; and that fact established the right of the holder of the certificate to a deed. The assignment of the certificate to Dodge, and the quitclaim deed of his interest, by his heirs, made the plaintiff in error the equitable owner of the lot. While it is true and a well-settled legal proposition that a plaintiff in an action in ejectment must recover upon the strength of his own title, yet, in this state, under § 595 of the code of civil procedure, the plaintiff is not required to hold the legal title, or a title paramount to the title of all others, to enable him to recover. All that is necessary to entitle him to recover is, that he shall have some kind of an estate in the property in controversy, legal or equitable, and that his title to the property shall be paramount to that of the defendant. (Hollenbeck v. Ess, 31 Kas. 87; A. T. & S. F. Rld. Co. v. Pracht, 30 id. 71; A. T. & S. F. Rld. Co. v. Rockwood, 25 id. 302; Simpson v. Boring, 16 id. 248, and cases there cited.)
We think the title of the plaintiff, as found by the trial court, was superior to that of the defendant.
The court found that the first tax deed was void on its face, but as to the second, while good on its face, as a matter of fact the taxes had been paid prior to the sale; this rendered the second deed void. Where the owner of land or his agent redeemed the same from a tax sale before the execution of the tax deed, in accordance with the provisions of the statute, a tax deed issued after the land is so redeemed is null and void. (Tax Law, §140; Gen. Stat. of 1889, ¶6994; Leitzbach v. Jackman, 28 Kas. 524.) As we view the ease, the defendant only had a possessory title. While possession, with claim of ownership, is evidence of title, it is of itself an inferior title. The legal title to the town-site passed from the government to the probate judge, and from him to the town company; and the latter had issued a certificate by which it parted with all its interest in the lot in question, except conveying the legal title, which it held for the benefit of the certificate holder, his heirs or assigns. It will -be presumed that the probate judge deeded the land to the proper party. (Sherry v. Sampson, 11 Kas. 612.) The defendant can be amply protected for the improvements he has made upon the premises and the taxes he has paid. (Tax Law, §142; Gen. Stat. of 1889, ¶6996; Civil Code, §§ 601, 602.)
We recommend a reversal of the judgment of the district court, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action on a note and mortgage, commenced in the district court of Barber county.
The plaintiffs filed an ordinary petition in a foreclosure suit, which was duly verified by one of their attorneys. The defendants answered, first, by denying all of the allegations of the petition except the execution of the note and mortgage described in the petition; and, for a second defense, alleged that the debt sued upon had been wholly paid and satisfied in full. The answer was not sworn to. The plaintiffs filed a motion for judgment on the pleadings, which was sustained by the court, and judgment was accordingly rendered in favor of the plaintiffs for the amount prayed for in their petition, and a decree was entered for the foreclosure and sale of the mortgaged premises. The plaintiffs in error bring the record here for review.
The court below seemed to have held that, because the petition was sworn to and the answer was unverified, the latter did not raise an issue, and therefore rendered judgment in accordance with the prayer of the petition. This was error. The defendants below, in their answer, alleged payment and satisfaction of the debt, which, if true, was a complete defense to the action. There was no necessity for a verification of the answer under § 108 of the code. That section provides that, in all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of an appointment or authority, or the correctness of any account, duly verified by the affidavit of the party, his agent, or attorney, shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent, or attorney. This does not include the defense of payment.
It is claimed by the defendants in error that the answer was rightfully disregarded, because the summons was returnable on the 21st day of April, 1888, and therefore the answer should have been filed on or before the 11th day of May following. But opposed to this position is the fact that the summons designated when the defendants should answer, and the further fact that they did file their answer on the very day named in the summons. The motion for judgment on the pleadings should have been overruled.
It is recommended that the judgment of the district court be reversed, and a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
The petitioner, James M. Nickell,. alleges that he is illegally restrained of his liberty by the sheriff of Kingman county, because he refused to answer certain questions propounded to him against his will and over his-objections, in a certain case pending in the district court of Kingman county, wherein the state was plaintiff and he was defendant, on the 28th day of December, 1891. The material facts are, that on the 26th day of December, 1891, there was pending in the district court of Kingman county a criminal action against the petitioner for selling liquor. The-district judge issued an order which recited that there was-reasonable ground for believing that the petitioner had, by bribery, menace, false pretensions, coaxing, threatening, and offering to pay for time lost, etc., induced and compelled and caused certain witnesses to absent themselves from court, and disobey a subpoena issued in the case of The State v. James M„ Nickell, who was charged with selling liquors; and being of , the opinion that the conduct of the petitioner in inducing,, compelling and causing witnesses to absent themselves from court was calculated to embarrass and obstruct the administration of justice, and was a contempt of court, ordered the petitioner to answer the charge and show cause why he should not be punished for contempt of court. On the 28th of December, 1891, the petitioner asked for a reasonable time in which to plead to the complaint, which request was overruled. He then objected to being tried under the complaint, and asked to be tried under the statutes, by information, and also asked for a jury. This request was refused by the court. The petitioner, over his objection, was then sworn as a witness, and placed upon the stand to testify on behalf of the state. He refused to answer the questions submitted to him by the state. The court then ordered him committed to the jail of Kingman county until he should answer such questions as had been propounded to him by the state. On the same day that the petitioner was committed, he made application to the probate judge of Kingman county for a writ of habeas corpus, which was granted, and a hearing was fixed for the 6th day of January, 1892, and the petitioner was ordered to give a bond for his appearance, which was furnished and approved. On the 29th day of December the district court ordered a warrant to issue for the arrest of the petitioner, under which he was taken and imprisoned in the county jail. This warrant was issued for the same cause for which the petitioner was originally committed. The petitioner then made application to this court for a writ of habeas corpus, which was granted on the 30th day of December, 1891.
The petitioner claims the right to be discharged and released from the order of commitment and warrant of the district court, on the ground that he was charged with a statutory crime; that § 155 of the crimes-and-punishments act makes it a misdemeanor for any person, by bribery, menace, or other means, to induce any witness to absent himself, or avoid a subpoena, or withhold his evidence, or deter any witness from appearing in .and giving evidence in any civil or criminal case; that he was compelled to go upon the witness stand for the purpose of giving evidence against himself; and, had he answered the questions propounded to him, such answers might have had a tendency to criminate him. The protection given by the constitution of the United States to all persons charged with crime is in the following language: “Nor shall any person be subject for the same offense to be twice put' in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself.” The right given under our own constitution reads, “No person shall be a witness against himself, or be twice put in jeopardy for the same offense.” It is not only a constitutional right, but it is one of the fundamental principles of the common law, embodied in a maxim, that no man can be compelled to criminate himself. This right has become so much a part of government, in the administration of justice, that it has become as trite as it is true. The sole question for our determination is, whether the well-settled principle is applicable to the case before us. The petitioner is charged with a contempt of court; but the offense with which he is charged is not only a contempt of court but a statutory crime. Could the state, under such circumstances, compel the petitioner to go upon the witness stand and give evidence? This question must be resolved in favor of the petitioner. The supreme court of the United States, in the case of Counselman v. Hitchcock, United States marshal for the northern district of Illinois, recently decided and not yet officially reported, has held that, under the fifth amendment to the constitution of the United States, persons have the right to refuse to answer questions which might be used against them in criminal cases; and that this right must be construed in its broadest sense. The court in its opinion, rendered by Mr. Justice Blatchford, says in substance:
“That it does not find it necessary to consider any other point than that raised under the constitution as to the privileges of witnesses. It is urged, says the court, that a witness is not entitled to plead the privilege of silence except in a criminal case against himself, but such is not the language of the constitution. Its provision is that no person shall be compelled in any criminal case to be a witness against himself. This provision must have a broad construction in favor of the right which it was intended to secure. The matter under investigation by the grand jury was a criminal matter, and the reason given by Counselman for his refusal was, his answer might tend to criminate him. His apprehension was that the answers might show that he had committed a crime against the interstate commerce act, for which he might be prosecuted. His answers, therefore, would be testimony against himself, and he would not be compelled to give them in a criminal case. It is impossible that the meaning of the constitutional provision could only be that a person should not be compelled to be a witness in a criminal prosecution against himself. The object was to insure that a person should not be compelled, when acting as a witness in an investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks fo guard.”
The case of the petitioner is stronger than the Counselman case. Here the' petitioner is charged with a crime, and the state was seeking to condemn and convict him out of his own mouth. Besides, the language of our constitution, if anything, is stronger than the fifth amendment to the constitution of the United States. Both by the letter and spirit of § 10 of the bill of rights, no person shall be a witness against himself. It does not even limit the right to criminal cases. We think the case of the petitioner comes clearly within the rule and right given by the fifth amendment to the constitution of the United States and the recent decision of the supreme court referred to, as well as § 10 of the bill of rights of our own constitution.
Another fatal objection which might be urged against the proceedings is, that the alleged contempt was not charged to have been committed in the presence of the court, and there was no written complaint properly verified, containing a statement of the facts constituting the offense, filed with the court. This has been held to be necessary in all cases of constructive contempt. (See The State v. Henthorn, 46 Kas. 613, and The State v. Vincent, 46 id. 618.) There was a paper signed by the judge called a complaint, but it was in fact an order for the petitioner to show cause why he should not be punished for contempt, and it was not verified. If it be true, as counsel for the state has intimated — and there seems to be some ground for the charge — that there has been a disposition to obstruct the administration of justice and disregard the court’s processes to secure the attendance of witnesses in the original case, of which the present proceeding is an outgrowth, the prosecuting officer should see to it that the parties, whoever they may be, should be dealt with, and that condign punishment; be administered to all persons who may be guilty of so grave an offense as interfering with the orders and processes of the court, or obstructing the administration of justice through the courts of the land. The remedy is plain and simple. Where parties have committed a crime of the nature charged in this case, the court can direct the county attorney to proceed against the parties as charged, or the county attorney can, upon his motion, proceed against them; and if the offense is as grave as claimed here, it is his duty to do so.
It is recommended that the petitioner be discharged.
By the Court: It is so ordered.
All the Justices concurring.
Per Curiam:
The same questions are presented in In re Edward McKenna as in the petition of James M. Nickell for a writ of habeas corpus, just decided, and the petitioner is discharged, upon the authority of that case. | [
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Per Owriam:
The contention in this case is really over the constitutionality of the statute- permitting a prosecuting witness to be committed for his failure to pay costs when the jury find the defendant not guilty, and also find that the prosecution was instituted from malicious motives and without probable cause. (Crim. Code, § 326.)
Section 275, chapter 31, Gen. Stat. of 1868, (§309 of the Crimes Act, ¶ 2449, Gen. Stat. of 1889,) is also referred to. An argument is presented against its constitutionality. But we need refer only to § 326 of the criminal code to dispose of the motion now pending. The constitutionality of this statute is upheld in In re Ebenhack, 17 Kas. 618, decided in 1877, about 15 years ago. Mr. ‘Justice Brewer delivered the opinion, and, among other things, said:
“That the prosecuting witness by coming into court and filing his complaint submits himself to the jurisdiction of the justice, and at the same time that the question of the guilt of the person, by his affidavit charged with crime, is tried, his own conduct in the premises is inquired into. True, he is not upon the record as a party plaintiff or defendant, but the prosecution is instituted at his instance, and he appears upon the record as the complaining party. Many civil proceedings were formerly in the name of the state upon the relation of some one. . . . It is true, also, that no formal accusation is presented against the complainant upon which he is tried and found guilty, and that the first written statement of his wrong is in the finding and order; but the same is equally true in many cases in commitments for contempt. There, often the first writing is the order of the court committing the offender for the contempt. The proceeding is summary, but it is clear that it is due process of law, and that the offender has had his day in court. Indeed, it may well be considered that he who maliciously, or without probable cause, invokes the process of a court to oppress and wrong an innocent party, by placing him under arrest and upon trial for violation of law, is guilty of a contempt of court.”
The present case was decided at our January term for 1891, in obedience to the Ebenhack case. That decision has established for a long time a rule opposite to the decision referred to in The State v. Ensign, 11 Neb. 529. We cannot now depart from the Ebenhack case without overruling various subsequent decisions, and we are not willing to do so. If § 326 of the criminal code, as construed, works injustice in any case, the legislature has ample authority to interfere. The decisions of this court have been uniform since In re Ebenhack was decided, and we^ prefer to adhere to it.
After a defendant is acquitted, the state is not entitled to a new trial before a jury as to which party must pay the costs. The prosecuting witness is so connected with the state in the trial that after the acquittal of the defendant he cannot demand a retrial upon the evidence before another jury. If costs are improperly taxed by the court after the acquittal of the defendant, of course, a motion can' be made for the re-taxation, and a proper inquiry may be had thereon.
In this case, it appears that the district court approved the verdict of acquittal and also the finding of the jury against the prosecuting witness; therefore, in this case, the court below pronounced judgment of acquittal and for the commitment of the prosecuting witness, in accordance with its own opinion — not merely the opinion of the jury.
The motion for a rehearing will be overruled. | [
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Opinion by
Strang, C.:
This was a proceeding in quo warranto, to determine who, as between the parties to the action, was entitled to the office of treasurer of school district No. 115, in Smith county, Kansas. At the annual school meeting in 1882, Horneman was elected treasurer of said district and served three years, and until the annual election in 1885. At that time it was discovered that there should have been an election the year before, in 1884, and upon such discovery in 1885, he was elected for two years to fill the vacancy. He qualified and gave a bond after his election in 1882, and qualified after his election in 1885, but it is not certain that he gave a bond after that election. At the annual school meeting in 1887 he was again elected, and qualified the same day, but did not at that time give a bond. At the meeting of the board, during which he was qualified, he inquired of the director if he had a blank that he could use in giving his bond. The director did not have any blank. He asked Horneman if he had given a bond before when he was elected, and was informed by the latter that he did in the sum of $1,000, and that the amount of money that passed through his hands the previous year was about $500. The director then said that as he (Horneman) had given a bond before he was elected, and was his own successor, he did not think it was necessary for him to give a new bond; that the old would hold good. The matter of giving a bond was talked about between the director and Horneman, and the clerk of the district and Horneman, several times afterward, Horneman asking both the director and the clerk to procure a blank so he could give a bond. No bond was in fact given until the 28th of June, 1888, the day before the annual school meeting for that year, nor did the board ever formally determine the amount of the bond until the evening before the bond was given. The bond was executed according to law, and approved by the director and clerk of the district on the day of its execution, and was at once delivered by Horneman to the clerk. The clerk, whose term of office expired that day, thinking the bond should be deposited with the county superintendent of schools, and not wanting to take that trouble himself, delivered the bond back to Horneman that evening, that he might send it to the superintendent. Horneman was a blacksmith, and, busy at work at that time, laid the bond in his desk, and forgot that he had it until his attention was called thereto by the director and clerk, some time about a week afterward. In the meantime, there being no bond among the papers turned over to the new clerk, elected at the meeting in June, 1888, the superintendent appointed M. E. Harlan, the defendant, treasurer of said school district. Horneman still claimed to be treasurer and continued to act as such. And from the date of his appointment Harlan claimed to be treasurer, and this action was brought to settle the question as to which was entitled to the office. The case was tried by the court without a jury, resulting in a judgment for’Harlan, ousting Horneman from the office, and requiring him to pay costs of suit. Motion for new trial was filed and overruled, and a case made for this court.
The real question in the case is, whether the judgment of the trial court is right. Whether or not the judgment is right depends upon the further question whether or not a vacancy existed that could be filled by the superintendent at the time he appointed Harlan. Our statute, ¶5594 of the General Statutes of 1889, reads as follows:
“Every person duly elected to the office of director, clerk or treasurer of any school district who shall refuse or neglect, without sufficient cause, to qualify within 20 days after his election or appointment, or who, having entered upon the duties of his office, shall neglect or refuse to perform any duty required of him by the provisions of this act, shall thereby forfeit his right to the office to which he was elected or appointed, and the superintendent shall thereupon appoint a suitable person in his stead.”
Paragraph 5607 of the same statute relates to the giving of a bond by the treasurer of a school district, and so much of it as is material here reads as follows: “ The treasurer shall execute to the district a bond, in double the amount, as near as can be ascertained, to come into his hands as treasurer during the year, with sufficient securities, to be approved by the director and clerk, conditioned to the faithful discharge of the duties of said office.” It will be seen that the statute requires the treasurer to qualify within 20 days after his election, but it is silent as to the time within which he shall execute a bond. In this case the oath of office was administered to Horneman the same evening of his election, which was more than a year before Harlan was appointed, and during all that time Horne-man was not only acting as treasurer of the district, but until a few days, not exceeding a week or 10 days, before Harlan’s appointment, his right to the office was never questioned by anyone. Was there a vacancy in the office of treasurer of school district 115 in Smith county, that could be filled by appointment when Harlan was appointed ? We think not. Horne-man was elected at the annual school meeting in 1887, for the term of three years. He immediately qualified, by taking the oath of office, and while he served nearly a year before he gave a bond, yet he had given a bond before any action was taken by the superintendent; so that he had not only been regularly elected to the office, but had complied with all the provisions of the law by taking the oath of office, giving a bond, and the performance of the duties of the office, before the appointment of Harlan. Under such circumstances, we do not think a vacancy existed at the time of the appointment of Harlan by the superintendent. The failure on the part of Horneman to give a bond was the only excuse for the appointment of Harlan by the superintendent. That delinquency on Horneman’s part had been removed by his giving a bond, which the court finds was executed according to law, before the superintendent took action; and, as the statute is silent as to the time within which the bond must be given, we think Horneman, who had thus fully complied with all the provisions of the law, was the rightful treasurer of said district at the time of the appointment of Harlan, and that the appointment of Harlan was void, and Horneman continued to be the treasurer of said district.
It was claimed at the trial below by the counsel for Harlan, who have not filed a brief in this court nor appeared to argue the case in person, that the bond of Horneman should have been left with the clerk. It is true that with the clerk is the proper place to deposit the bond of the treasurer. It is also true that the treasurer did deliver his bond to the clerk after its execution. We do not think the fact that the clerk, who, thinking the bond should be deposited with the superintendent, returned it to Horneman that he might so deposit it, invalidated the bond. If Horneman had taken it back with the intention of destroying it, or to withdraw it entirely, it would have been different. There can be no doubt but that Horneman and his sureties, in case of default, would have remained liable on the bond as well after it was returned to him by the clerk for the purpose of delivering it to the superintendent as while it was in the hands of the clerk before its return. And if the district could recover on it in case of default of Horneman, it should still be sufficient to protect him against an attack upon his right to the office upon the ground that he had given no bond.
It is recommended that the judgment of the district court be reversed, and the case remanded for further proceedings.
. By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Charles Zimmerman was charged, in an information filed by the county attorney of Barber county, in the first count thereof, with having, on the 7th day of December, 1889, forged the name of Mrs. Ella Lee to a promissory note of the sum of $450. The second count charged Zimmerman with having sold, delivered and exchanged the note-with intent to defraud Mrs. Ella Lee, knowing the same to-be a forgery. The third count charged Zimmerman with having forged the name of Mrs. Ella Lee to a chattel mortgage, purporting to secure the note of $450. Zimmerman was convicted upon the first and second counts, and sentenced to imprisonment and hard labor in the penitentiary of the state for the period of one year on the first count, and also one year on the second count; the second term of imprisonment to commence upon the expiration of the first term. From the conviction and sentence of the trial court, an appeal is taken to this court.
I. It is contended that the trial court erred in overruling the motion to quash the information, and also in refusing to compel the state to elect upon which count it would rely for conviction. The first count of the information for forgery in the third degree was drawn under § 129 of the act relating to crimes and punishments. This offense is punishable under the statute by confinement and hard labor not exceeding seven years. The second count of the information for forgery in the fourth degree was drawn under § 133 of the act relating to crimes and punishments. This offense is punishable by confinement and hard labor not exceeding five years, or by imprisonment in the county jail not less than six months. In support of the contention that the information should have been quashed, or the state compelled to elect, it is said that the information contains counts for separate and distinct felonies, and that these felonies are not necessarily punishable under the statute in the same way. The authorities fully sustain the information. It was decided in The State v. Hodges, 45 Kas, 390, that “several separate and distinct felonies may be charged in separate counts of one and the same information, where all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment.” (See Whar. Crim. Pl. & Pr., §285, et seq., and cases there cited; 1 Bish. Crim. Proc., 3d ed., §§424, 450, 451; 4 Am. & Eng. Encyc. of Law, 754-756; The State v. Bancroft, 22 Kas. 170; The State v. Chandler, 31 id. 201; The State v. Goodwin, 33 id. 538; The State v. Fisher, 37 id. 404.) In this case, all of the counts are under different sections of the same statute, and relate to the same transaction. It matters not that the offenses alleged in the different counts are of different grades and call for different punishments. So long as all of the counts relate to the same transaction, there can be no objection to the union of such counts in the same information. It is proper to charge in an information the forgery of a note or other written instrument and the selling or uttering of the same as genuine. (The State v. McPherson, 9 Iowa, 53; The State v. Nichols, 38 id. 110; Hoskins v. The State, 11 Ga. 92; Barnwell v. The State, 1 Tex. App. 745; Maxw. Crim. Proc. 52, 53.)
II. Upon the trial, Zimmerman claimed in his defense that the note of $450, and the chattel mortgage given to secure the same, were signed by Mrs. Ella Lee, and therefore genuine. He also claimed that the note and mortgage were given in renewal of a promissory note dated the 12th day of June, 1889, of $319, and secured by a chattel mortgage of the same date. This note and chattel mortgage he attempted to introduce in evidence before the jury for the purpose of allowing them to be compared with the signatures to the note and mortgage of $450, which he was charged with having forged. The state introduced Mrs. Ella Lee, who testified, that she never signed the note of $450, or the mortgage given to secure the same. She further testified, that on the 7th of December, 1889, Charles Zimmerman called to see her about signing the note and mortgage of $450; that he told her this note and mortgage were to renew the note and mortgage of the 12th of June, 1889. She then testified that she and her husband gave the mortgage of the 12th of June, 1889; that it was drawn up at her house, and that she signed the mortgage, but did not sign the promissory note which the mortgage was given to secure. During her examination. Mrs. Lee repeated the statement that she signed the mortgage of June 12,1889. Mr. Zimmerman testified that Mrs. Lee signed both the note and mortgage of June 12, 1889. As the signature of Mrs. Ella Lee upon the mortgage of June 12, 1889, was testified to as genuine, both upon the part of the state and upon the part of the defendant, it must be admitted to be genuine. The trial court, upon the testimony, ought to have allowed the prior mortgage to be introduced in evidence for the purpose of comparing Mrs. Ella Lee’s signature on that instrument with the signature on the note and mortgage described in the information. The jury ought to have been allowed to ex amine the admitted signature for the purpose of comparison. In Macomber v. Scott, 10 Kas. 335, it was said that—
“It will generally be conceded that comparisons may be had between writings in the following cases: Where the writings to be used as specimens are admitted to be genuine, and generally where no collateral issues can arise; where the different writings are already properly in evidence, or properly in the case for some other purpose; where the witness has seen the person whose signature is disputed previously write, although it has been only his name; where the witness has personal knowledge of the person’s writing ■ from some other proper source, as from having seen writing which the person in the course of business has acknowledged to be his, or has acted on as his, etc.; where writings are of such antiquity that living witnesses cannot be had to prove them, and such writings are not so old as to prove themselves; and probably in many more cases which we might mention.”
On account of the rejection of competent and important evidence offered by the defendant, the judgment 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
Johnston, J.:
The plaintiffs, who are alleged to be the sole heirs at law of Francis Myers, deceased, who died intestate in April, 1869, brought this action in the district court of Sedgwick county against the defendant, Cynthia Center, who was formerly the wife of Francis Myers, deceased, asking for relief on account of the fraud of the defendant. The petition was in two counts, in which it was substantially alleged that Francis Myers and the defendant were married to each other in Indiana in 1852, and lived together as husband and wife until the fall of 1859; that in 1858 or 1859 Francis Myers sold his farm and other property and with the defendant moved to Iowa; that in the fall of 1859 Francis Myers was taken sick, and while he was confined to his bed his wife secretly absconded, taking with her a team and wagon of the value of $400, and $1,600 in money, the property and money of her husband; that she “fled from the state of Iowa, and soon thereafter changed her name, and removed from place to place, so that the said Francis, during his life-time, although making diligent search therefor, was unable to learn where she had gone, or her place of residence; that said Francis Myers died in April, 1869, without having heard from defendant, or knowing where she had gone; that plaintiffs, after the death of said Francis Myers, were unable to learn of the whereabouts of the defendant until within the past two years.” It is alleged that the defendant has invested the money so obtained from time to time in real property situated in Sedgwick county, Kansas, and that such property in fact belongs to the plaintiffs, who are the sole heirs of Francis Myers, who died intestate in Iowa, leaving no debts. In one count the plaintiffs ask that defendant be declared to hold the property in trust for them, and to account for the rents and profits of the same, and that she be required to convey the property to the plaintiffs. In the other count they ask for judgment against her for the sum of $2,000, with 7 per cent, annual interest thereon from October, 1859. The defendant demurred to the petition, upon the grounds that the action was barred by the statute of limitations; that it did not state facts sufficient to constitute a cause of action ■ and that the plaintiffs are not the proper parties to sue, nor the real parties in interest. The demurrer was sustained by the court, and the plaintiffs electing stand to upon their petition, judgment was rendered against them for costs.
The ruling on the demurrer was correct. The causes of action which the plaintiffs attempted to state are manifestly based on the fraud of the defendant, and, if they ever existed, are barred by the statute of limitations. Such an action can only be brought within two years after the cause of action shall have accrued. (Civil Code, §18, subdiv. 3; Young v. Whittenhall, 15 Kas. 579; Main v. Payne, 17 id. 608; Doyle v. Doyle, 33 id. 721.) The averments of the petition disclose that the fraud was consummated over 30 years ago, but the plaintiffs rely upon the exception that the cause of action does not accrue until the discovery of the fraud. As it was apparent upon the face of the petition that the fraud was consummated and that the cause of action, was complete in 1859, it devolved upon the plaintiffs to plead this or any other exception which would take the case out of the operation of the statute of limi7 tations. (Young v. Whittenhall, supra.) The averments of the petition show not only the commission of the fraud, but that it was discovered soon afterward by Francis Myers, in his lifetime, as it is alleged that he made diligent search to find her, but that he died in 1869 without finding her or the property which she carried away. It is the failure to discover the fraud, and not the inability to find the person who has committed the fraud, which gives rise to the exception that has been mentioned.
The plaintiffs also claim that the allegation that the defendant absconded and concealed herself brings the case within the exception provided in § 21 of the civil code. It is not enough . to establish an exception that the defendant absconded from Iowa, or concealed herself elsewhere than in Kansas. “ The words absconding and concealing as used in that section refer to the acts of the party in this state.” (Frey v. Aultman, 30 Kas. 182; Hoggett v. Emerson, 8 id. 262.) It is not stated in the petition when the defendant came to Kansas, nor are there any averments of acts or efforts on her part to conceal her whereabouts since she came to Kansas. It is stated that she left the state of Iowa, changed her name, and removed from place to place, so that Francis Myers during his lifetime was unable to learn where she had gone, or her place of residence; but even these allegations, although insufficient to create an exception, do not apply to the plaintiffs. Francis Myers died in 1869, and there is no allegation that the defendant changed her name or place of residence since 1869. The mere general allegation that plaintiffs were unable to learn the whereabouts of the defendant until two years prior to the commencement of the action is of itself insufficient to bring it within the exception mentioned in § 21. If the concealment is such as is contemplated by that section, it devolved on the plaintiffs to clearly set forth the acts constituting the same, and, failing to state this, or any other exception, the petition was fatally defective, and the demurrer was rightly sustained. As this ground alone is sufficient to sustain the ruling of the court, it is unnecessary to examine the others.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Price, J.:
This is an action to recover for injuries sustained in an automobile collision. The action is against the driver of the car in which plaintiff was riding. Defendant has appealed from an adverse judgment.
There is no particular dispute as to just what happened.
Plaintiff resides in Offerle, and was engaged in farming. Defendant lived in Kinsley, and was a school teacher. For sometime they had worked as a “team” in officiating at high school basketball games in the area. For this work each was paid $15.00 per game. They also received travel allowance of 15 cents per mile, one way, for one car. Their custom was to alternate in the use of their cars. Whoever drove his car received the mileage. On February 23, 1962, they were to “work” a game at Burdett. It had been arranged that defendant would drive his car that evening, and about five o’clock he picked up plaintiff and they started for Burdett.
While proceeding in a northerly direction defendant stopped his car at the intersection with an east-west highway. There was a rise to the east of the intersection for about 600 feet which obscured the view at the intersection of a car approaching from the east. Seeing no car approaching, defendant started to drive through the intersection. While in the intersection plaintiff saw a car coming from the east and yelled — “Watch it, Wayne.” The westbound car was then only 200 to 300 feet away. Defendant, instead of driving on through the intersection — stopped, and proceeded to back up. The result was that the west-bound car, driven by a Mr. Soukup, struck defendant’s car on its right side. Plaintiff sustained injuries, and brought this action to recover damages in the amount of $32,751.81. His petition charged defendant with negligence in failing to keep a proper look-out for other vehicles, in failing to yield the right-of-way to Soukup who was operating his car in a lawful manner, in failing to proceed on to the north in order to clear the highway for oncoming traffic, and in stopping his car and backing up.
Defendant’s answer denied generally, and alleged that plaintiff was riding with him as a “guest” and therefore could recover only if defendant was guilty of gross and wanton negligence — which was denied. The answer further alleged that plaintiff’s injuries were solely and proximately caused by the negligence of Soukup— the driver of the car which approached from the east — and that if defendant was guilty of any act of negligence plaintiff was careless and negligent in failing to keep a proper lookout for other vehicles using the highway, in failing to warn defendant of the approach of the car driven by Soukup and in making no protest concerning the crossing of the intersection by defendant.
Plaintiff’s action was brought and tried on the theory that at the time and place in question he and defendant were engaged in a joint enterprise.” He concedes that gross and wanton negligence was neither pleaded nor shown by the evidence.
At the conclusion of the trial the jury returned a general verdict for plaintiff for $6,201.81 and made special findings as follows:
“1. Could the plaintiff and defendant have seen the Soukup car as they pulled away from the stop sign?
Answer: No.
“2. Did the driver of the defendant’s car have the sole right to determine the route to be taken to arrive at their destination?
Answer: No.
“3. Did the defendant with his car have the final decision as to the operation of the car and route to be taken?
Answer: No.
“4. Did the defendant receive any payment from plaintiff for riding in the defendant’s car?
Answer: Yes.”
Defendant has appealed.
His first three points are to the effect the petition and evidence failed to remove the action from tire “guest statute” (K. S. A. 8-122b) which in substance provides that no person who is transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injuries unless such injury shall have resulted from the gross and wanton negligence of the operator of such motor vehicle. The contention is that defendant received no “payment for such transportation,” therefore plaintiff was riding as a “guest” — and gross and wanton negligence neither being pleaded nor established by the evidence — he cannot recover.
The question as to what constitutes “payment” within the meaning of the guest statute has been before this court many times and what has been said and held in the numerous decisions need not be repeated here. Whether the payment is directly from the rider to the driver is immaterial. It is undisputed that defendant was to receive 15 cents per mile, one way, for the trip in question, the payment to come from the competing high schools or like source. Within the meaning of the statute plaintiff was not a guest — therefore ordinary negligence would support recovery. For a discussion of the question see Elliott v. Behner, 146 Kan. 827, Syl. 3, 73 P. 2d 1116; Shanks v. Gilkinson, 177 Kan. 225, 229, 277 P. 2d 594; Bedenbender v. Walls, 177 Kan. 531, 280 P. 2d 630; Ehrsam v. Borgen, 185 Kan. 776, 347 P. 2d 260, and also Sparks v. Getz, 170 Kan. 287, 225 P. 2d 106, in which a number of earlier cases are reviewed.
Having concluded that plaintiff was not a guest we pass to the matter of “joint enterprise” — which is argued at considerable length by both parties. Plaintiffs contention that the parties were engaged in a joint enterprise appears to be for the purpose of showing that he was not a guest — while defendant appears to contend that if they were engaged in a joint enterprise then any negligence of defendant is to be imputed to plaintiff — thus barring recovery.
At the outset it is to be kept in mind this is not an action by plaintiff against a third party. The question as to what constitutes a joint enterprise between parties so that — as affecting a third party defendant — the negligence of one is to be imputed to the other— is discussed at length in Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459, and Hunter v. Brand, 186 Kan. 415, 350 P. 2d 805.
Here, however, we have a different situation. Assuming for the sake of argument that plaintiff and defendant were engaged in a joint enterprise — (as apparently found by the jury in the second and third special findings, above) such fact would not in and of itself preclude plaintiff from recovery against defendant — provided of course he was not guilty of contributory negligence. The general rule is stated in 8 Am Jur 2d, Automobiles and Highway Traffic, § 681, p. 233:
“The negligence of one member of a joint enterprise driving a motor vehicle may not be imputed to another member of the joint enterprise, riding with him, for the purpose of precluding liability of the former to the latter for personal injuries resulting from the negligent operation of the vehicle. In other words, where one joint adventurer is guilty of a tortious act in the operation of a motor vehicle to the damage of an associate in the joint adventure, he must respond in damages.”
Also see Annotations at 62 A. L. R. 440 at p. 442, and 85 A. L. R. 630 at p. 632.
The general rule is followed in this state. In Elliott v. Behner, 146 Kan. 827, 73 P. 2d 1116, it was held:
“Assuming that the driver and other occupants of a truck are engaged in a joint enterprise, it would not preclude one of them from recovering damages from the driver for injuries sustained through the latter’s negligent driving. The doctrine of imputed negligence has no application in such action.” (Syl. 4.)
Attention also is called to a discussion of the question beginning on page 831 of the opinion where this court quoted with approval language in a case from the state of Washington to the effect that when the action is brought by one member of the enterprise against another there is no place to apply the doctrine of imputed negligence; that to do so would be to permit one guilty of negligence to take refuge behind his own wrong, and that the situation when the action is brought by one member of the enterprise against the other is entirely different from that when recovery is sought against a third person. Also see the Bedenbender case, above, at page 535.
A number of contentions are made which, in view of the evidence, the general and special verdicts, and our conclusions just stated— require no discussion. Under our many decisions plaintiff was not a guest — and even though it be assumed that he and defendant were engaged in a joint enterprise the negligence of defendant would not be imputed to him. Inherent in the general verdict for plaintiff is a finding of negligence on the part of defendant. Special finding No. 1, above, would appear to absolve plaintiff of contributory negligence.
K. S. A. 60-261 provides that no error in either the admission or exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court, or by any of the parties, is ground for granting a new trial or for setting aside a verdict or otherwise disturbing a judgment, unless refusal to take such action appears to the court inconsistent with substantial justice. The section further admonishes a trial court to disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
K. S. A. 60-2105 long has been the law of this state (see G. S. 1949, 60-3317), and directs that on appeal this court is to disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudically affected the substantial rights of the party complaining, where it appears from the whole record that substantial justice has been done by the judgment of the trial court.
Examination of the record in this case discloses no error which may be said to be inconsistent with substantial justice or which may be said to have prejudicially affected the substantial rights of defendant.
The judgment is affirmed. | [
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The opinion o£ the court was delivered by
Kaul, J.:
This is an action to recover damages for personal injuries allegedly sustained by the plaintiff, Christina Ann McCoy (appellant), while a patient in the University of Kansas Medical Center.
The question presented is whether the Board of Regents of the State of Kansas, consisting of the nine individual members named and the secretary of the Board, defendants (appellees), are immune from liability for alleged negligence in the operation of the University of Kansas Medical Center.
It is alleged by plaintiff that the Board of Regents of the State of Kansas under statutory direction is charged with the authority, management, control and government of the University of Kansas and in such capacity operates and manages the University Medical Center. (K. S. A. ch. 76.)
The trial court sustained a motion of defendants to dismiss the action on the ground that the Roard of Regents is an agency of the State of Kansas and entitled to claim sovereign immunity as a defense against plaintiff’s cause of action.
The plaintiff perfected this appeal and included in her statement of points the following:
“1. The trial court erred in sustaining defendants’ motion to dismiss.
“2. The trial court erred in holding that the doctrine of sovereign immunity entitled defendants to a dismissal of this action.
“3. The doctrine of sovereign immunity should be abolished.
“4. University of Kansas Medical Center was at all times relevant in this action engaged in a proprietary function so that the doctrine of sovereign immunity was inapplicable.”
The motion to dismiss as presented to the trial court in this case may be considered the modern equivalent to a demurrer. Therefore, the questions presented will be decided from the well pleaded facts of plaintiff’s petition. (Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347.)
The petition may be summarized quite briefly for purposes of our consideration here. Plaintiff alleges she entered University of Kansas Medical Center on April 29, 1961, as a private (paying) patient for treatment of multiple injuries suffered by her in an automobile accident. Plaintiff suffered injuries to her spinal cord resulting in a complete paraplegic state below the hips with total sensory loss in both lower extremities. Plaintiff’s confinement and treatment continued until she had attained sufficient improvement to warrant being released on November 1, 1961. She states, however, that at that time she was still in a paraplegic state with complete sensory loss in both lower extremities. During the night of October 31, 1961, plaintiff alleges her bed had been placed alongside a hot radiator, and she suffered deep and penetrating burns of her left foot when said foot came into contact with the radiator, and remained in contact for an unknown period of time, all without plaintiff’s knowledge due to her sensory loss. She alleges such injury was due to the carelessness and negligence of the agents and employees of the hospital. That by reason thereof, she was compelled to remain in said hospital for further treatment for a period of time which had not been determined as of December 29, 1961. On this last date she was still confined to her bed in a helpless state and was again placed alongside the same hot radiator and that sometime during the night of said date plaintiff again was found by hospital employees with her left foot in contact with said hot radiator. As a result thereof she suffered deep and severe second and third degree burns on her left foot.
Plaintiff further alleges that the burns sustained by her during the nights of October 31 and December 29, 1961, were caused by the carelessness and negligence of the agents, servants and employees of said hospital who had knowledge of her helpless condition and the fact that she had no feeling in her legs. Plaintiff states that she was under the influence of sleep inducing medication on both occasions.
As a result of the burns plaintiff was compelled to undergo additional hospitalization and treatment from November 1, 1961, to February 13, 1962, and underwent several skin grafting surgical procedures. She alleges unsightly scars resulting from the surgery and the injuries and results of the surgery are permanent. Recovery was sought in the amount of $100,000.00.
The plaintiff presents her contentions in the alternative. She first contends that the doctrine of sovereign immunity as applied to agencies of this state should be abolished in toto. If total abolishment is rejected by the court, tihen in the alternative she argues that the operation of the Medical Center is a proprietory function and that the doctrine of immunity is inapplicable when an agency of the state is engaged in the pursuit of such function.
Defendants, on the other hand, contend this court has specifically resolved both points to the contrary of plaintiff’s positions in the recent decisions of Caywood v. Board of County Commissioners, 194 Kan. 419, 399 P. 2d 561, and Parker v. City of Hutchinson, supra.
At the outset it is to be noted that the issues here involve die application of the doctrine of immunity to the functions of an agency of the state itself. In the Caywood and Parker decisions our consideration was directed to the application of the doctrine of immunity to the functions of subordinate governments, a county and city respectively. Our discussion here is restricted primarily to the application of the immunity to the functions of an actual agency of the state itself, the Board of Regents.
The status of the Medical Center as a function of the state was not directly in issue but its immunity as such from tort liability was referred to in Voss v. Bridwell, 188 Kan. 643, 364 P. 2d 955, and in Capps v. Valk, 189 Kan. 287, 369 P. 2d 238, actions brought to recover damages for malpractice against staff physicians of the Medical Center. In the Capps case it was stated:
“The district court evidenced great concern about the problem of making interns, residents, and other doctors at the Medical Center, who were paid salaries by the state of Kansas, agents of the defendant who was a professor and instructor at the Center and who was also paid a salary by the state. This is not the problem. Where the employer is a state governmental agency and immune from tort responsibility under the governmental function doctrine, the official cloak of immunity does not extend to the negligent employee, as an individual, so as to shield him from answering for his wrongful act by which another has suffered injury. (Emrie v. Tice, 174 Kan. 739, 744, 258 P. 2d 332; Rose v. Board of Education, 184 Kan. 486, 337 P. 2d 652; Voss v. Bridwell, 188 Kan. 643, 657, 364 P. 2d 955.) The defendant was not acting as a professor and instructor when he performed surgery on the plaintiff. His employment was not special and limited to surgery only, but he was acting as a physician in private practice to attend the plaintiff who was his private patient.” (pp. 290, 291.) (Emphasis added.)
The immunity from tort liability of the Medical Center was clearly indicated in both the Bridwell and Capps cases, however, the court refused to include negligent employees within the cloak of immunity. We are now called upon to reexamine the application of the immunity doctrine to this particular function of the state.
We have considered the argument of plaintiff that injustice may be done to a person who has suffered injury at the hands of negligent employees of a state agency by the application of the doctrine. Also, we are aware of the expressions of some text writers and legal scholars that the doctrine is an outmoded relic of the past and has no place in a modem enlightened society. However, it is unnecessary to engage in a discussion of the merits of the doctrine. The decisions of this court on the subject were not resolved by a determination of whether the doctrine was good or bad, but rather on the premise that abrogation is properly a function of tibe legislature and not the judiciary. In this connection plaintiff argues that it should not be solely the legislature’s function and cites a number of cases from other jurisdictions in which the courts have acted. Most of the cases cited by plaintiff were reviewed in our recent opinion in Parker v. City of Hutchinson, supra. Repetition here would serve no useful purpose. Legislative reaction in many states to the judicial abrogation or alteration of the doctrine, is also discussed in the Barker opinion. We recommend to the interested reader, the extensive survey of the subject by Albert B. Martin, in an article entitled "Sovereign-Governmental Immunity,” published by The League of Kansas Municipalities, November 1965.
In writing on the subject, many authors advocating abrogation of the doctrine, advance the argument that legislatures of the various states are generally indifferent to tort law and changes thereof. This argument is not applicable in this jurisdiction.
The legislative-judicial prerogative proposition in Kansas may be distinguished from that existing in most states where judicial prerogative has been exercised. In Kansas, as we pointed out in the Parker case, the legislature has not been indifferent. We must acknowledge the legislature’s awareness of the sovereign immunity principle as evidence by legislative action in providing in a number of instances for tort liability of political subdivisions and agencies of the state.
In 1955 immunity from liability for the negligent operation of motor vehicles was waived to the extent of the amount of motor vehicle liability insurance purchased by a political subdivision of the state. (K. S. A. 12-2601, et seq.) Some years ago immunity of a county was waived as to liability for a defective bridge, culvert or highway. (K. S. A. 68-301.)
By the enactment of K. S. A. 68-419 the legislature waived the immunity of the state highway commission from suit for defective highways. The waiver of immunity was qualified by the legislature, however, in limiting liability unless certain named officials or employees of the highway commission had notice of the existence of defects five days prior to the time when the alleged damage was sustained.
In 1959 the legislature provided for waiver of immunity from liability of a state agency for injuries to their employees. The waiver of immunity in this case was restricted to those agencies electing to come under the Workmen’s Compensation Act and further limited the employees covered to be only those engaged in a “hazardous activity.” (K. S. A. 44-505a, et seq.)
As recently as 1963 the legislature provided for limited waiver of immunity of state agencies from liability resulting from the negligent operation of motor vehicles. (K. S. A. 74-4747, et seq.) The legislature in these enactments provided for the purchase of liability insurance and again the caution exercised by the legislature in waiving immunity is clearly evidenced by the limitation of the waiver only to the extent of the amount of insurance obtained.
The full awareness of the subject by the legislature is demonstrated by these numerous and continuing enactments. In our opinion such legislative activity in the field serves as a sound basis for our previous rulings that the legislature has given extensive recognition to the subject of governmental immunity in this state and this court should decline a further waiver by judicial decree.
Plaintiff argues that our recent action in abolishing the charitable doctrine in Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934 (1954) and by including therein religious corporations in McAtee v. St. Paul’s Mission, 190 Kan. 518, 376 P. 2d 823 (1962), we have participated in a so-called revision of common-law tort immunities which should now be extended to governmental functions. Plaintiff’s argument that an analogy exists cannot be maintained. In the Noel opinion we stated the reasons why the need no longer exists for the application of the immunity doctrine to functions of a charitable institution. Repetition here would serve no useful purpose. Immunity from tort liability as applied to charitable and religious institutions involves the function of voluntary private corporations and individuals, an area in which the legislature has shown no concern.
Plaintiff’s contention that the operation of the Medical Center by defendants constitutes a proprietary, as opposed to a governmental, function is irrelevant to the issue under consideration. The governmental-proprietary distinction relating to municipal immunity has never been applied to activities of a state agency in this jurisdiction. The state is the fountainhead of governmental immunity. The immunity of subordinate branches of the government stems from the state. As long as a subordinate branch of the state performs governmental and political functions set up and imposed by the state, then such branch partakes of the immunity which inheres in state sovereignty. (Smith v. Higgins, 149 Kan. 477, 87 P. 2d 544.) A city, unlike a county is authorized to voluntarily pursue functions beyond those governmental and political functions imposed upon it as a branch of the state government. Generally when such proprietary functions are pursued by a municipality it moves out from under the cloak of immunity from tort liability stemming from the state. Cases demonstrating the application of the governmental-proprietary function relating to municipal immunity have been thoroughly catalogued in our recent decisions of Parker v. City of Hutchinson, supra, and Caywood v. Board of County Commissioners, supra. The distinction is inapplicable to the state agency function under consideration herein and further discussion is unnecessary.
Lastly, the plaintiff contends the doctrine of immunity collides with § 18 of the Kansas Bill of Rights. The same argument, with respect to the immunity of a county, was before the court in Cay- wood v. Board of County Commissioners, supra. The proposition was rejected. It was stated:
“Notwithstanding plaintiff’s argument as to the application of § 18 of the Bill of Rights, which provides that all persons, for injuries suffered in person, shall have remedy by due course of law, we decide this case — not on the basis of the ‘governmental-proprietary’ function doctrine as applied to cities — but on the basis of the many decisions of this court to the effect that in the absence of a statute imposing liability — a county is not liable in damages for negligence.” (p. 423.)
The legislature has expressed the policy o£ this state concerning the extent of liability of state agencies for suit. Since no liability has been imposed as to the functions of defendants in the operation of the Medical Center, we must conclude the trial court correctly sustained the defendants’ motion to dismiss.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment affirming an award of the Workmens Compensation Director. The sole question presented is whether the deceased was an employee of the appellant, the Roark Motor Company, Inc.
The undisputed facts from which the question of employment must be determined may be summarized.
Reginald L. Roark owned the Roark Motor Company in partnership until 1957. The company operated at Olathe, Kansas and had a selling agreement with Pontiac, Buick and General Motors Corporation. In 1957, Reginald became the sole owner of the company. In 1961, he married Frances Roark, his widow and sole heir. On July 1, 1962, the company was incorporated. There were 10,000 shares of stock of which 7,500 were issued to Reginald and 2,500 share were issued to Reginald and Frances in joint tenancy.
The incorporators were listed as Reginald, Frances and Ira Wilkes, a colored man who was in charge of the wash rack. There was an average of 18 to 21 employees in the company. Neither Frances nor Wilkes attended any board of directors meetings. Neither did they take any part in managing or operating the corporation. Reginald was designated president. The record does not indicate that any other persons were ever elected to the board of directors. Reginald decided at the start that he would receive $1,000 a month plus a bonus up to $18,000 a year if the earnings were sufficient. There was no written agreement. Reginald drew checks on the company when he needed spending money. He accounted to no one in the firm as to finances or management. He built a house and a swimming pool and paid the bills by checks on the company which were charged to his account. At the end of the year the company issued him a check for $30,000 and he endorsed it back to the company to cover his withdrawals.
On March 11, 1964, Reginald and his adopted son were returning from Detroit, Michigan where they had been on company business in the company plane. They encountered a storm, the plane was forced down and both were killed.
The widow, Frances Roark, filed a claim with the Workmen’s Compensation Director seeking death benefits as a dependent wife.
The Workmen’s Compensation Examiner made an award of $15,000 to be paid in the amount of $42 per week except for the accumulated amount of $2,772 which was to be paid in a lump sum. Burial allowance in the amount of $600 was also allowed. The award was approved by the Director.
The respondent and its insurer had contested the claim on the basis that the decedent was not an employee and appealed to the district court where it continued the contention. The district court sustained the award and its judgment is now before us for review.
The appellants contend that the trial court erred in finding that the relationship of employer and employee existed and in sustaining the award.
We are forced to agree.
We cannot see that the fact that steps were taken to incorporate the business in any way changed Reginald’s relationship which existed when he was the sole and individual proprietor. In fact, the testimony was to the effect that “The situation started that way back with the old partners and it continued through the proprietorship and into the corporation . . .”
We have no precedents to aid us determining the question as it pertains to our local Workmen’s Compensation Act. This court has held that the fact a laborer in a mine was one of several stockholders did not prevent him being an employee under the act; (Grigliono v. Hope Coal Co., 125 Kan. 581, 264 Pac. 1051.) The case furnishes no precedent for the facts before us.
K. S. A. 55-508 (i) provides in part:
“ ‘Workman’ means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer. . . .”
Employment anticipates an understanding or agreement between two parties — the employee will perform such work as he is directed by his employer or representative and he will receive such compensation as has been agreed. A person cannot contract with himself.
Reginald L. Roark was in fact the sole owner of the stock in the company. He exercised complete control over all phases of the company’s business. He selected incorporators who would not and could not interfere with his control. He never called them into a meeting or solicited their advice. He made an arrangement by which he siphoned all the earnings from the company at such time and in such amounts as were convenient, without answering to anyone. He came and went as he pleased and answered to no one as to what work he was to perform for the company, if any.
Limiting our decision to the facts and circumstances of this case we are constrained to hold that the deceased was not an employee of the respondent, the Roark Motor Company, Inc.
The judgment is reversed.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Dawson, J.:
This action is concerned with the validity of certain liens claimed for labor performed and materials supplied in the improvement of real property.
It appears that the plaintiff Cobb built a house in Wichita for Sarah J. Burford. Pontius, Martin and Turner furnished certain labor and materials used in its construction. Cobb filed suit to recover his due. Mrs. Burford answered that she owed somebody $2,451.35, either plaintiff or one or more subcontractors, thirteen of whom had filed answers and cross petitions in the action setting up claims to liens on her property aggregating $4,386.17, but that Cobb was not entitled to anything until he had paid these liens.
Pontius, Martin and Turner, codefendants, were three of these subcontractors, and their claims were for $517.87, $350.57 and $153.33, respectively. In their answers and cross petitions they did not allege service of a written notice on Sarah J. Burford informing her of the filing of their several liens. In her answer to these lien claimants and cross petitioners defendant Burford joined issues on various matters not here pertinent, and alleged:
“This defendant further alleges that the said oodefendants and each of them did not file their mechanic's lien within the time allowed by law for furnishing their last labor and material.
“That the said 'defendants and each of them did not file a valid lien and serve their notice on this defendant, Sarah J. Burford, within the time pi'ovided by law.”
At the trial defendant Burford’s objection to the introduction of evidence on behalf of Pontius, Martin and Turner was sustained, on the ground that they had failed to include in their cross petition “an allegation that notice had been served upon Sarah J. Burford, as the owner of the premises, notifying her that a mechanic’s lien had been filed against her property, and because more than one year had passed from the date of the said filing at the time of the trial of this action.”
Judgments were entered in behalf of Pontius, Martin and Turner against the plaintiff Cobb, but it was also adjudged that they were not entitled to a lien against the property of Sarah J. Burford.
The cross defendants appeal, complaining of the rulings of the trial court against their tenders of evidence and their motion to amend their cross petitions.
Touching the ruling on the motions to amend the pleadings, that matter was vested in the sound discretion of the trial court, and error is not apparent thereon. (Croner v. Keefer, 103 Kan. 204, 206, 173 Pac. 282.)
Coming to the main question: the creation of a lien in behalf of a person who is not a direct creditor of the owner of property is purely a matter of statute, vand of course the statutory steps to create and perfect such lien must be taken, otherwise it does not arise. One of the requisite steps to perfect such lien is the giving of a written notice to the owner of the property that such a lien has been filed. The statute reads:
“Any lien provided for by this act may be enforced by civil action in the district court of the county in which the land is situated, and such action shall be brought within one year from the time of the filing of said lien with the clerk of said court: Provided, That where a promissory note is given such action may be brought at any time within one year from the maturity of said note. The practice, pleading and proceedings in such action shall conform to the rules prescribed by the code of civil procedure as far as the same may be applicable; and in case of action brought, any lien statement may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed.” (R. S. 60-1405.)
It has been repeatedly held that a pleading setting up a mechanic’s lien is defective if it fails to allege service of notice in writing as required by the statute. (Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254; Baker v. Griffin, 120 Kan. 448, 243 Pac. 1057.) It is argued, however, that the want of this requisite allegation in the cross petition of appellants was supplied by the answer of Sarah J. Burford. We have quoted above the pertinent recitals of her answer. It would indeed be a curious piece of tergiversation if defendant’s pleading in which she alleged that appellants had failed to file their liens within time and alleged that their liens were not valid and that appellants had not served timely notice on defendant were fairly susceptible of an interpretation that she was admitting the timely filing and timely notice of appellants’ lien claims and admitting (or waiving) full compliance with all the statutory steps requisite to the enforcement of these liens. This court is bound to hold that the quoted recitals of defendant’s answer cannot be construed to supply the missing but essential allegations prerequisite to the enforcement of appellants’ lien claims against defendant’s property.
The court discovers nothing in the record to justify the contention that Mrs. Burford waived service of notice, nor any basis for appellants’ argument that she was estopped by her pleadings to raise the question of appellants’ failure to allege notice; nor does the record disclose anything approaching error which would permit the judgment to be disturbed.
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The opinion of the court was delivered by
Dawson, J.:
This was án action to recover on a policy of accident insurance. Defendant’s demurrer was sustained, and plaintiff appeals.
The facts were these: Plaintiff held a policy of insurance issued by defendant, which among other matters bound defendant to indemnify him for loss of time through accidental injuries. It provided:
“The Continental Casualty Company, ... in consideration of the agreements and statements contained in the application herefor and the payment of an annual premium of S25 as therein provided, does on this 18th day of January, a. d. 1922, hereby insure Mr. Elmer Beeler (hereinafter called the insured) in class select of the company, as a president and general manager, oil supply house, office duties, in the principal sum of three thousand dollars with weekly indemnity of thirty-five dollars.”
The policy set out in detail a schedule of payments for specific injuries, and also set out its obligation for immediate total disability, and intermediate disability, of no present concern, and then provided:
“C. Partial Disability. Or if injury such as before described shall not at once wholly and continuously disable the insured, but shall thereafter within one hundred days wholly disable him, . . . the company will pay one-half said weekly indemnity for the period of such disability not exceeding two hundred weeks. . . .
“Standard Provisions.
“4. Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing such injury. In event of accidental death, immediate notice thereof must be given to the company.
“5. . . . Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.”
The plaintiff was a large, strong, healthy man, forty-four years of age, actively engaged in buying and selling pipe, machinery and tools used in the business of developing oil and gas wells. On the forenoon of May 8, 1922, while out in the yard showing some casing pipe to a prospective customer, he was standing on some pipe and his feet slipped from under him and he fell heavily on his back. He got up without assistance, and although he felt some pain he went on with his business. As the day wore on he felt little pain, but some stiffness. Some three or four days later he felt a tearing sensation across his stomach, especially when he was eating. When driving his automobile over rough ground he would feel some pain in the small of his back. He continued to attend to business, but the pains in his stomach and abdomen grew more severe, and within a few days after his fall he called on a local physician, Doctor DeMott, who pronounced his ailment to be biliousness and gave him medicine adapted to relieve that malady. This treatment did no good, so he returned to Doctor DeMott, who still thought his trouble was biliousness and gave him more medicine. Getting worse instead of better, on May 29, 1922, plaintiff went to Claremore, Okla., to take medicinal baths and to consult a Doctor Bushyhead, who thought plaintiff had malaria and prescribed for him accordingly. Plaintiff took Doctor Bushyhead’s medicine, and that doctor came to see him several times during the ensuing three weeks, but plaintiff continued to grow worse, and then Doctor Bushyhead told him there was some thing wrong with him which he could not discover, and advised plaintiff to go to an expert diagnostician, and recommended Doctor Sloan, of Kansas City. Accordingly, early in July, plaintiff went to Kansas City and was subjected to a searching examination by Doctor Sloan. That doctor also took plaintiff to a Doctor Lee and said he could find nothing wrong with plaintiff, but thought “the trouble might be in the front door,” which plaintiff understood to mean his mouth. Doctor Lee examined plaintiff and sent him to an X-ray operator to get a photograph of his teeth. Doctor Lee then stated that he could find nothing wrong with plaintiff except bad tonsils, which he removed. Plaintiff remained in a hospital for a week and then stayed at the hotel in Kansas City for some time under observation by Doctor Sloan. Plaintiff then returned to his home in Independence and went to bed pursuant to Doctor Sloan’s orders. Doctor Taggart, a local physician, then took up plaintiff’s case, under directions of Doctor Sloan, who kept in touch with the case himself by frequent conversations with Doctor Taggart over the long-distance telephone. But the efforts of all these doctors were unavailing, and plaintiff was confined to his bed for several months, never free from the pains in his stomach, and gradually losing control of his limbs. At one time or another plaintiff had apprised all these physicians of his severe fall in May, 1922, but none of them attached any significance to the fall as a cause of his peculiar affliction. Plaintiff testified:
“I told Doctor Sloan about these pains, the drawing sensation across my stomach; that it felt like I had swallowed a brick. I also told him I had had a fall, and described the way I fell by slipping off of these joints of pipe and striking the small of my back on the pipe. He said he could not attribute my sickness to the fall, in view of the fact that he thought it would have put me down and out at the time if it had been severe enough to cause my sickness. After I had described these conditions to him and he had said that he did not think it was the result of the fall, I concluded that the fall did not have anything to do with my sickness, and never at any time from the date of the fall to the time I went to Doctor Sloan did I think that the fall had anything to do with it. . . .
“ . . . Doctor Sloan had told me that I had myelitis. He also told me that my tonsils were poisoning my system. Doctor Sloan gave me iodine. I followed the advice of Doctor Sloan and Doctor Taggart for about six months and abandoned their treatment because I was not getting well, and I thought they were wrong in their diagnoses.”
Eventually Doctors Sloan and Taggart decided that there was nothing in their healing art which would do the plaintiff any good, and after he had been confined to his house and mostly to his bed for nearly a year, Doctor Taggart suggested that a competent osteopath be called. A practitioner of that art, Dr. Blandin Smith, then took charge' of plaintiff’s case and made the discovery that several of plaintiff’s vertebrse were out of line.' An X-ray picture of plaintiff’s backbone was 'taken which disclosed a subluxation between the dorsal and lumbar vertebrse. Doctor Smith .began to treat plaintiff and continued to do so for five or six months, and plaintiff made considerable improvement. When these treatments began plaintiff could not walk without assistance, and his feet shuffled. In June, 1923, plaintiff heard of a certain chiropractor in Guthrie, Okla., Dr. Willis T. Neely, who made a practice of setting bones that were out of place. Plaintiff testified:
“I was not dissatisfied with the way Doctor Smith had treated me, but I felt that I had not gotten along as fast as I should, and Doctor Smith told me that there was a bone in my back that he could not get back in its proper position on account of the fact that I was too heavy and he was not a large man. I thought I was probably too heavy for him to fix me up. At Guthrie Doctor Neely examined me and I told him about the fall that I had had and about the symptoms and how I felt, just like I had told the other doctors, and he told me that he thought my illness was the result of the fall. I was not convinced because I wanted to get well before I would say who was right. I remained at Guthrie from about the latter part of June until about the 1st of September, taking treatments from Doctor Neely. He gave me two treatments every day and some days three treatments. I got better; the pain in my stomach and the heavy feeling left me. Under Doctor Neely’s treatment my ability to walk improved and my control over my legs became better. When I came back from Guthrie about the first of September, 1923, all of my stomach trouble was gone, but I had not recovered the full use of my legs, and could not walk as well as I could before the fall. After I came back home I continued to improve; however, it was three or four months after my return from Guthrie about the first of September, before I felt that I was fully recovered. I never became convinced nor believed that the diagnoses of Doctor Smith and Doctor Neely were correct and that the diagnoses of the other doctors were wrong until I was practically recovered, and at about the time that I wrote the letter to the defendant. At the time I wrote this letter I had then become convinced that my sickness was the result of the fall, and as soon as I had become convinced I wrote the letter to the insurance company.
“The fact that Doctor DeMott, Doctor Bushyhead, Doctor Sloan and Doctor Taggart all diagnosed my case as not the result of this fall induced me to believe, and I did believe, that the fall had nothing to do with my illness, and when Doctor Smith of this city came to the conclusion that the suffering I was enduring was, in his opinion, the result of the fall, I did not in fact regard the same seriously, in view of the diagnoses by the preceding four doctors to the contrary. I was not satisfied until Dr. W. T. Neely, of Guthrie, made the examination and definitely pronounced it the result of a fall, and, coupled with my rapid recovery under his diagnosis and treatment, I am convinced that the illness I suffered from resulted solely and directly from this fall. . . .
“Cross-examination:
“When I returned from Guthrie I was able to walk around and attend to my business a short time each day. After Doctor Smith examined me and started to treat me I had no further treatments from Doctor Taggart or any of the former doctors whom I had consulted. Doctor Smith told me I had two or three vertebrae knocked out of place. ... I thought there was a chance that I might get better because the other doctors had told me that they were mistaken about it. To a certain extent I believed what Doctor Smith said about the cause of my illness. I abandoned the treatment of the former doctors because they told me they did not know what was the matter with me. Doctor Smith treated me from about December 1, 1922, to June, 1923, and gave me two or three treatments a week. I consulted no one else during that period.
“When Doctor Smith first started to treat me I was not able to be up; I could not sit up; I was in bed all of the time. Under Doctor Smith’s treatment I got better and got so I could walk uptown.
“At the time I got in touch with Doctor Neely I cannot say that I then believed that the fall was the cause of my sickness. I had tried the other doctors to a point where they said I was getting worse and they did not know what was the matter with me. While Doctor Neely was recommended to me as being a good man to adjust bones in the back, I cannot say that I then believed that the dislocation of these bones from the fall was the cause of my trouble. I could not say that I even believed it a little bit.”
On October 18, 1923, plaintiff wrote a letter to the defendant giving it a comprehensive narrative of the facts as outlined above, which was the first and only notice the company received of plaintiff's accident and injury.
On the point that plaintiff had failed to notify the company within twenty days as provided in the clause of the policy quoted above, defendant denied liability; and apparently its demurrer to plaintiff’s evidence was sustained for the same reason.
Was this ruling correct? Did the facts outlined above, considered most favorably in plaintiff’s behalf, clearly show that there was nothing for a jury to consider, and that it was the duty of the trial court as a matter of law to rule that plaintiff had waited altogether too long before he notified the defendant of his accident and injury — that plaintiff did not give the company such notice “as soon as was reasonably possible”? Under the evidence in this case, just when could it be said dogmatically that the time limit for giving notice to the company expired? There should be no trouble in fixing such a point of time if the failure to notify “as soon as was reasonably possible” was so obvious and beyond cavil that a jury’s duty to determine that question was properly dispensed with. Under the circumstances, plaintiff could not be expected to notify the company until he realized the fact that his ailment was occasioned by his fall. One after another of his medical advisers belittled his suggestion that the fall might have had something to do with his malady. It was therefore quite reasonable that plaintiff should adopt their views and dismiss from his own mind the idea that his fall might have occasioned it. Moreover, the fact that his disease appeared to be a sort of tearing across his stomach, and eventually led to a want of control of his feet, would hardly suggest to a nonprofessional person like plaintiff that the root and origin of such indisposition was a fall that caused only a slight pain in his back. Nor can it be arbitrarily said as a matter of law that when Dr. Blandin Smith ventured the opinion that his trouble originated in his back he was forthwith put on notice himself so as to make it his duty to notify the company without further delay. We cannot say it was his bounden duty then and there to reject the opinions and advice he had already gotten from the four or five doctors who had treated him theretofore, nor that his failure to notify the company at that time relieved the defendant of liability. It was quite natural that plaintiff should not immediately attach implicit credence to what Doctor Smith said nor to what Doctor Neely said, nor until under the ministrations of these professional men he had so far recovered that the correctness of their diagnoses was fairly demonstrated by the results which their skill achieved.
So far as disclosed by the record this court fails to discern in this case any substantial difference in principle from that which controlled the case of Hawthorne v. Protective Association, 112 Kan. 356, 210 Pac. 1086, and cases cited in note thereto in 29 A. L. R. 500. Giving that favorable consideration to plaintiff’s evidence to which it was entitled as against a demurrer thereto (Stice v. Railway Co., 110 Kan. 763, 766, 205 Pac. 616; Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008), this court is constrained to hold that it was a fair question of fact for the jury to consider and determine, and not for the trial court to rule upon as a matter of law, whether plaintiff did or did not notify the company of his accident and injury as soon as it was reasonably possible under the peculiar circumstances of this case.
The judgment of the district court is reversed and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an.action to foreclose Sedgwick county’s lien on a small tract of land for delinquent taxes, interest and penalties. The defendants set up a tax deed issued by the county as a defense to the action. The cause was disposed of in the trial court' on an agreed statement of facts, and judgment was entered for defendants.
The county board appeals.
The pertinent facts were these: The taxes on the property for the year 1913 were not paid and it was bid in by the county treasurer. The taxes for the years 1914 and 1915 were likewise unpaid. On September 5,1916, the county treasurer sold the property to one DuBois for the unpaid taxes for the year 1915. DuBois assigned his certificate of sale to one Patten, and Patten paid all subsequent taxes on the property for the years 1916, 1917 and 1918, and pursuant thereto, on December 8, 1919, the county clerk issued a tax deed to Patten for the land concerned. Patten recorded his tax deed in March, 1920, and on February 1,1922, Patten conveyed the property to Ray Campbell. The former fee title holder executed a quitclaim deed to the property in favor of Ray Campbell, who has been in possession since February 1,1922.
The turning point in the lawsuit depends on the legal consequences attaching to the sixth paragraph of the agreed statement of facts, which reads:
“6. That on December 8, 1919, when said tax deed was issued to said property to. R. G. Patten for the unpaid taxes of 1915, 1916, 1917 and 1918 there was unpaid back taxes on said described property for the year 1913 of $220.70 and for the year 1914 of $202.04, together with interest on each amount as pro vided by law, which taxes for said years 1913 and 1914 have never been, paid, and this action is brought to foreclose a lien claimed by the county on said premises for the unpaid taxes of said two years, it having bought in said property in September, 1914, and 1915, at the sales thereof for delinquent taxes of 1913 and 1914.” .
The trial court ruled that by virtue of the tax deed of 1919 pursuant to the sale of the property for the unpaid taxes of 1915, the present holder under that tax deed, Ray Campbell, was the owner of the property “free from any claim or lien for any taxes for the years 1913 and) 1914,” and that the defendants were entitled to judgment for costs.
Was this judgment correct? The precise question has not heretofore been authoritatively settled in this jurisdiction. The appellee presses upon our attention certain excerpts from 26 R. C. L. 401, and 37 Cyc. 1477, which declare the rule in many jurisdictions to be that when the taxes are unpaid on a piece of property for a number of successive years and it is sold in due course for the taxes of each of such years, the purchaser at the sale for the taxes of the latest year takes the land free from any lien for delinquent taxes of former years; and that a valid tax sale cuts off the liens for taxes for any year previous to that for which the sale was made. But the whole matter of taxation, including the powers of the taxing authorities to deal with property on which taxes are not paid, and to conserve the public’s revenues affected thereby, is governed by our own statutes; and general statements of abstract law gleaned from decisions of other jurisdictions are of little significance. In Ness County v. Light & Ice Co., 110 Kan. 501, 503, 204 Pac. 536, it was said:
“The whole matter of taxation is statutory; the means for the recovery of delinquent taxes is prescribed by statute, and does not exist apart from the statute.”
. In this case the county treasurer transcended his authority when he accepted money from DuBois for the delinquent taxes of 1915 while at the same time he ignored the county’s lien for the earlier delinquent taxes of 1913 and 1914. No such prerogative is vested in the county treasurer. The county treasurer was authorized to bid in the property for the county under R. S. 79-2311, 79-2324, and 79-2325. Other pertinent provisions of statute read:
“79-2319. All lands and town lots bid off for the county at any tax sale shall continue liable to be taxed in the same manner as if they were property of individuals, and such'taxes and charges shall be a lien upon such lands and town lots, but no lands or town lots so bid off for the county shall be sold for any taxes levied subsequent to such bid until they have been redeemed, or shall be sold by the county, or the tax certificate issued to the county shall have been assigned. If the subsequent taxes shall not be paid by any other person, such lands and town lots shall be advertised with, and in the same manner as, the other lands and town lots on which the taxes are not paid, and shall be subject to the same charges as if they should be sold. The treasurer shall enter such taxes and charges in the book of tax sales of the year in which said lands were sold to the county, opposite such lands or lots, and such taxes ■and charges shall constitute an additional lien. .
“79-2313. The county treasurer shall give each purchaser, on payment of his bid, a certificate dated the day of the sale, describing the lands purchased, the amount paid therefor, and the time the purchaser will be entitled to a deed, which certificate shall be assignable. . . .”
The only lawful way DuBois could have acquired the county’s interest in this property was by paying “into the county treasury a sum of money equal to the cost of redemption” for the taxes of 1913 and by paying the “additional lien” for delinquent taxes for subsequent years. In consideration of such payment, DuBois would have been entitled to the statutory certificate of purchase, which in fullness of time would have matured his right to a tax deed (79-2501) unless the owner of the property in the meantime had redeemed as permitted by R. S. 79-2412.
In view of these pertinent provisions of statute, as well as the county treasurer’s want of authority for the execution of a tax sale certificate to DuBois for the delinquent taxes of 1915, the tax deed based thereon is invalid, and those claiming under that deed without other defense cannot prevail against the county’s right to foreclose its lien for the delinquent taxes of 1913 and 1914.
Appellee suggests that Sedgwick county is estopped to enforce its lien for the taxes of 1913 and 1914 because of its tax deed to the defendants’ grantor. The principle of equitable estoppel is very limited in its application to controversies in which government, national, state or local, is a party. If the county had owned this tract of land merely as a landed proprietor and had sold it to defendants’ grantor pursuant to an ordinary contract of bargain and sale, probably the doctrine of estoppel would apply to the county as it would to an ordinary grantor. In its capacity as a mere governmental agency to collect and conserve the public revenues, estoppel based upon unauthorized acts of its officials cannot be successfully invoked against the county. (21 C. J. 1186; 10 R. C. L. 705, 707-708.)
It necessarily follows that the judgment of the district court to the effect that plaintiff has no lien on the property concerned and that defendants own that property free from any claim or lien for any taxes for the years 1913 and 1914 is erroneous and must be vacated.
The judgment is reversed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover an undivided half interest in 320 acres of Kiowa county land under a claim thereto founded on an oral contract made during plaintiff’s infancy between plaintiff and certain persons concerned in his welfare on the one part and the parents of defendant on the other part.
In substance the alleged contract was that in the year 1891, when plaintiff was nine years old, James T. Wallace and Susan Wallace, parents of defendant, made an agreement with plaintiff and with his custodians, by the terms of which plaintiff was to be received into their family and treated as their own child and to be reared and nurtured as though born to them, they to receive his services and obedience during his minority, and at their deaths plaintiff should receive one-half of their property.
Plaintiff’s petition with appropriate recitals set up this contract and alleged that pursuant thereto he entered into the family of James and Susan Wallace and was reared by them as their son and given the name of James L. Wallace, and that he resided with them and gave them his services, affection and obedience until the death of James in 1893, and thereafter he continued to render like service and obedience to Susan until her death on July 25, 1905, and that he had fully performed his part of the contract.
This action was brought on July 24, 1920. A demurrer to plaintiff’s petition which raised the statute of limitations was sustained by the trial court, and that ruling was reversed by this court. (Rooney v. McDermott, 113 Kan. 18, 213 Pac. 631.)
The defendant then answered, traversing the allegations of the petition, alleging defendant’s ownership and possession; and as to one quarter section of the land in controversy (the Wallace homestead) defendant alleged that she and her mother Susan Wallace became tenants in common of it upon her father’s death on January 3, 1893, and that they entered into possession at that time, and that defendant had held open and notorious possession of an undivided half interest in that quarter section since January 3, 1893. Touching the other quarter of land in controversy defendant alleged that Susan Wallace had owned it until her death on July 25, 1905; that Susan died intestate; and that defendant was the only heir of Susan; and that defendant inherited that quarter section, as well as Susan’s undivided half interest in the Wallace homestead; and that, she had held actual, open and notorious possession of these lands .since her mother’s death. The answer concluded thus:
“Defendant specifically denied that . . . James T. and Susan Wallace made an oral agreement with the plaintiff and those having the custody of the plaintiff, as alleged in plaintiff’s petition, whereby he was to receive at their death one-half of their property, both real and personal, of which they might die seized and possessed.”
On these issues the cause was tried. The jury returned a general verdict for plaintiff, and answered certain special questions:
“1. Do you find that James T. Wallace and Susan Wallace made an oral ■agreement with James A. Rooney, the plaintiff, by the terms of which agreement the plaintiff was to be received into their family and treated as their ■own child, they to receive his services and obedience until plaintiff was twenty-one years of age, and whereby they agreed that plaintiff should receive at their ■death one-half of all the property of which they might die possessed? A. Yes.
“2. Do you find that James A. Rooney, the plaintiff, fully performed his part of said agreement? A. Yes.
“Special Questions.
“1. [a] Was there a written agreement made by James. T. Wallace and ■Susan Wallace at or shortly after they took James Augustus Rooney into their home? A. No.”
Judgment was entered accordingly, and defendant appeals.
It is argued that the judgment is not sustained by the evidence. On that point the record shows the following facts:
Plaintiff was born in Boston, January 1, 1882. When he was about two years old his parents separated, and plaintiff’s mother left him at a police station in New York when he was about four years old. He was placed in custody of a society devoted to the care of abandoned children, and when he was about six years of age he was given into the charge of a family named Ward. One member of the Ward family took plaintiff to his abode in Illinois, and some months later another member of the Ward family took plaintiff to Kiowa county and placed him temporarily in the family of defendant’s parents, James T. Wallace and Susan Wallace. The Wallace family had one living daughter, the defendant. They had lost two other children by death. They soon became much attached to plaintiff and desired to keep him as their own son. The Ward family, however, wished to take the child back to Illinois, but eventually the Wallaces were permitted to keep him under the agreement which gave rise to this lawsuit. Plaintiff at that time was nine years of age. The Wallace family lived on a farm in Kiowa county. Plaintiff bore the name of J. L. Wallace, and was so known during his school days. James T. Wallace spoke of the lad as his boy, and said he had adopted him, and said the lad would get part of his property. One witness, who knew the circumstances under which the Ward family surrendered the plaintiff to the Wallace family, testified:
“A. After we talked about the Wards wanting him back and they was going to have him adopted, that Mr. Wallace and Mrs. Wallace both mentioned they had made an agreement with Jay if he would stay with them—
“A. Well, Mr. and Mrs. Wallace said they had made an agreement with this boy, if he would stay with them until he was twenty-one or until their death they would give him half of their property.
“Q. When Mr. Wallace told you what you have testified about here, about an agreement, did Mrs. Wallace say anything about that? A. She said they were going to fix all the papers up with that agreement. . . .
“Q. She mentioned the agreement? A. Yes, sir.
“Q. What did she say, if you can remember? A. She says we are going to give J. L. half of what we have got at our death if he stays with us.
“Q. And this was all one conversation? A. All had at the same time.
“Q. And the same people? A. Yes, sir.”
Another witness, who had been plaintiff’s school teacher, testified that on one occasion he was visiting at the Wallace home when plaintiff’s relationship to the family was discussed:
“A. We were sitting at the supper table; supper was over. Along later and talking, Juda [defendant] had gone out to milk the cows, and I was a little curious to know if that was all the family, or some of them married and gone away, so I asked them if they had any other children. Mrs. Wallace said they had twoi little children that died in infancy, buried back east.
“Q. What else did she say? A. And she says, ‘We took this boy here to raise, and we promised if he was a good boy, behaved himself, and stayed with us until he was twenty-one he should have half of our estate.’ And she-says, ‘Now J. L. [plaintiff], get out of here and help Juda with the cows; get along with you,’ she says, ‘or I will use my slipper.’ So he grabbed his hat and said, ‘By shucks,’ and went—
“The Court: What was that? A. So he grabbed his hat and said, ‘By shucks’ — kind of a byward he had — and pulled out to the barn.”
Another witness, a neighbor and acquaintance of the Wallace family for many years, testified:
“A. She told me that she and James T. Wallace, or Thomas as she called him, had agreed with J. L. Wallace that if he would stay with them during his minority, or . . . until he was twenty-one, and assist Thomas in the farm work that they at their death, or when they died, would give him one-half of their property.”
The evidence for the plaintiff tended to show that the hope of Mr. and Mrs. Wallace that plaintiff would turn out to be a helpful, obedient and dutiful son to them was fully realized. And after the death of Mr. Wallace he rendered the usual services of a growing son to Mrs. Wallace, and when defendant married and brought her husband into the Wallace family home the plaintiff continued to do the characteristic work of a farm lad. In 1900 defendant’s husband died, after which time plaintiff was his foster mother’s mainstay in conducting the farm until after he attained his majority in 1903. The farm was then rented, and Mrs. Wallace moved to Greensburg, where she died on July 25, 1905, and plaintiff started in life on his own account, working for several years as a servant or employee in Kiowa county. When he became of age, his foster mother gave him a team, wagon, and some money and chattels. About that time defendant told him he had no interest in the property, that she and her mother had rented the farm and that he would have to do for himself. Since her mother’s death defendant has held possession of the property through tenants. She herself has lived in Nebraska most of the time since April, 1907.
It does not seem to this court that there is either dearth or paucity of evidence to prove the contract alleged. Being oral, and made when plaintiff was nine years old, when he was too young to understand the contract made in his behalf with Mr. and Mrs. Wallace by those concerned in his welfare, and being made also with persons now deceased, the contract was proved in about the only way it could be proved' — by the testimony of apparently disinterested wit-' nesses who knew the facts concerning the rearing of plaintiff in the Wallace household, and who testified to the candid statements voluntarily and repeatedly made by James T. Wallace and Susan Wallace, telling how they had obtained custody of the plaintiff, and stating the specific terms of the bargain under which he was being reared by them as their own son. On the record at least, the evidence quite filled the measure of our exacting rule touching the high quality of proof requisite to establish an oral contract to devise, convey or otherwise bestow an interest in land when one party thereto has fully performed his obligation under such contract and the other parties thereto are dead. (Hickox v. Johnston, 113 Kan. 99, 213 Pac. 1060, 27 A. L. R. 1322, and note 1325 et seq.) In Bateman v. Franklin, 114 Kan. 183, 217 Pac. 318, the requisite sufficiency of proof in this sort of case was discussed. The court said:
“The contract, though oral, had been fully performed on plaintiff’s side, so the statute of frauds, which was not pleaded, would not bar the action. (Meador v. Manlove, 97 Kan. 706, 711, 712, 156 Pac. 731.) ... Of course this is the sort of case where the triers of the facts, and especially the trial judge, must be alert to see that estates are not plundered through false and fraudulent claims, and where there must be careful and conscientious sifting of the evidence. But such claims may be bona fide, and when they are such and are established by clear and convincing evidence, they are perfectly legitimate and must be respected and enforced. . . .
. . There are no new questions of law in this case. ... It is merely a question whether plaintiff can clearly and convincingly establish the material facts alleged in his petition.” (pp. 184-185.)
In Meador v. Manlove, 97 Kan. 706, 156 Pac. 731, it was said:
“But it is said that the statute of frauds and the statute of trusts and powers bar all consideration of the alleged oral agreements between David and Emma. ... It has often been regretted by the courts that exceptions have been made to the rule which requires agreements concerning important interests in land to be in writing. There is much to be said on both sides. It must suffice here to say that exceptions do exist, and that these statutes themselves recognize that there are such exceptions. (Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713; 39 Cyc. 169, 177, 182, 186, 187.) Many such cases involving the recognized exceptions to the ordinary rule requiring such contracts to be in writing have been considered by this court. (Long v. Duncan, 10 Kan. 294; Baldwin v. Baldwin, 73 Kan. 39, 84 Pac. 568; Gemmel v. Fletcher, supra; Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396; Heery v. Reed, 80 Kan. 380, 102 Pac. 846; Wooddell v. Allbrecht, 80 Kan. 736, 104 Pac. 559; Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351; Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147; Holland v. Holland, 89 Kan. 730, 132 Pac. 989; Smith v. Cameron, 92 Kan. 652, 141 Pac. 596; Eadie v. Hamilton, 94 Kan. 214, 146 Pac. 323; Holland v. Holland, ante, p. 169, 155 Pac. 5.)” (pp. 711, 712. See, also, Lennen v. Ogden, 98 Kan. 747, 161 Pac. 904.)
The error assigned on the insufficiency of the evidence to establish the contract cannot be sustained.
Defendant presses on our attention the matter of laches and the statute of limitations. The question involving the statute of limitations in this case has already been adjudicated. (Rooney v. McDermott, 113 Kan. 18, 213 Pac. 631.) To the point of laches urged by defendant there are several sufficient answers. Ordinarily, to be effective, laches must be pleaded. (Thompson v. Colby, 127 Ia. 234; 36 Cyc. 782.) Here' it was not pleaded. Moreover, the record tends to show that during a considerable portion of the long interval which elapsed between the death of Mrs. Wallace and the commencement of this action plaintiff was not aware of the rights which had accrued to him by reason of the contract made in his behalf when he was only nine years old. Defendant herself was partly responsible for the delay, since she assured him, when he became of. .age, that he must get out and do for himself because he had no interest in the family property. So even if laches had been pleaded, it was not established.
In Hudson v. Herman, 81 Kan. 627, 107 Pac. 35, it was said:
“The doctrine of laches is invoked. Laches was not pleaded, but the appellant urges that it goes to the right of the plaintiffs to recover against him. Waiving the question of pleading, it may be observed that laches is an equitable bar to relief depending on all the circumstances of the case (Dunbar v. Green, 66 Kan. 557, 567), and except in instances of clear error the judgment of the trial court denying its effectiveness will not be disturbed. In this case no unusual circumstances appear to shorten the ordinary statutory period of limitation.” (p. 640. See, also, McGill v. McGill, 101 Kan. 324, 327, and citations, 166 Pac. 501.)
Defendant assigns error in rejecting testimony tending to show the comparative value of Kiowa county lands in 1905 and 1920. Under the facts of this case it does not appear how such evidence would have been material; but even so, the proffered testimony was not brought into the record, and consequently the ruling cannot be reviewed. (Leach v. Urschel, 112 Kan. 629, syl. ¶ 9, 212 Pac. 111; Braymer Mfg. Co. v. Midwest & G. Oil Corporation, 118 Kan. 439, 235 Pac. 847.)
Error is also assigned on the exclusion of two letters written by plaintiff to the New York society which had concerned itself in his welfare during his helpless infancy. In these letters plaintiff sought to learn whether he had been adopted by the Ward family and what arrangements were made when they transferred him to the Wallace family, and asking for a letter written by Mr. Wallace in 1890 expressing a wish to adopt the plaintiff. In plaintiff's petition he laid claim to one-half the property on two grounds — one founded on his right as a duly adopted son, and the other on his right under the oral contract. The evidence (as it appears to this court, although we are not the triers of! the facts) tended rather persuasively to show that plaintiff was adopted by Mr. and Mrs. Wallace; but certain probate court records and other county records of Kiowa county for a period of several years were missing or destroyed by ñre, and the adoption of plaintiff could not be indisputably established by record proof; and on motion of defendant the trial court required plaintiff to elect whether he would stand on his claim as an adopted son or on his right under the oral contract made in his behalf. Whether that ruling was quite fair to plaintiff is immaterial now. He elected to-stand on the contract, and then, of course, whatever letters or other documents tended primarily or secondarily to prove his adoption and any deductions which might be drawn therefrom went out of the case, and the exclusion of the letters was not error.
Error is urged because the court “gave no instruction with reference to the necessity of the appellee establishing his claim by a preponderance of the evidence, nor did the court instruct the jury that the burden of proof rested upon the appellee.” The error thus ¡assigned is wholly void of merit. The case was not the ordinary one where the jury should be told to find for the party adducing a mere preponderance of evidence. Throughout the lengthy but carefully drawn instructions, the trial court appropriately advised the jury to this effect:
“4. ... In. such, case, if you are convinced by the evidence by clear and satisfactory proof that said contract was entered into and that plaintiff has carried out his part, then one-half of the property would become vested in the daughter, Juda I. McDermott, and the other half would become vested in this plaintiff in. pursuance of said contract. Any personal property, if there was any, is not involved in this litigation; the only matter involved is the real property.
“6. Before the plaintiff can recover in this action he must establish to your satisfaction by clear and convincing proof that the Wallaces entered into the contract as claimed. The Wallaces both being dead at this time prevents the plaintiff from testifying as to the terms and conditions of the contract because of the statute which prohibits the survivor of an oral contract from testifying directly as to its terms, therefore the plaintiff is compelled to prove such contract, if any there was, by other facts and circumstances. You are instructed that a contract of this kind may be proved by circumstantial evidence; but before you can find from circumstantial evidence the existence of such a contract there must be such facts and circumstances proved as indicate convincingly that the contract was made and the terms thereof. ... If you are convinced from all the facts and circumstances shown in evidence that plaintiff has clearly established his claim of the contract and that he has performed his part of it, then in such case it will be your duty to find for the plaintiff that he is the owner of an undivided one-half interest in the southwest quarter and the southeast quarter of section 10, township 28, range 20; on the other hand, if you believe from the evidence that plaintiff has failed to clearly and convincingly establish the fact of such contract or the performance of his part thereof, then your verdict should be for the defendant.
“7. In regard to the evidence offered concerning statements made by James T. Wallace during his lifetime and Susan Wallace in her .lifetime as to the conditions under which plaintiff was living at their home, you are instructed that evidence of such statements made by persons since deceased are to be received by the jury with great caution, because of the liability of witnesses to misstate or misunderstand the statements when made, and to remember inaccurately or misrepresent them afterwards. This is especially true where verbal statements are testified to many years after they were made.”
No error appears in the instructions given or refused.
Error is also urged in overruling defendant’s motion for a new trial based upon newly discovered evidence. This was presented by affidavits of persons who had lived in the neighborhood during the years when plaintiff was being reared by the Wallace family. The gist of this testimony was that these neighbors at one time or another had heard Mr. Wallace, or Mrs. Wallace, or plaintiff himself, say that all plaintiff was to receive from the Wallaces was a team, wagon, a suit of clothes and some money when he attained his majority. There was evidence to that effect adduced at the trial. This additional evidence offered in support of the motion for a new trial would have been only cumulative, and new trials are not granted thereon as a matter of right. (Pasho v. Blitz, 99 Kan. 421, 162 Pac. 1161.) And it was very clearly shown by defendant’s own testimony that want of diligence was her only excuse for the non-production of this evidence at the trial, and consequently the overruling of her motion for a new trial was not error. (State v. Evans, 119 Kan. 469, 472, 239 Pac. 996.) Moreover, a careful-reading of the belated testimony suggests no probability that a new trial would produce a different result, and on that ground, also, its denial was not error. (Brock v. Corbin, 94 Kan. 542, 146 Pac. 1150.)
A painstaking consideration of the record and The errors assigned thereon discloses nothing which would justify a disturbance of the judgment, and it is therefore affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from a judgment disallowing a claim against the estate of a decedent. Claimant appeals from the judgment of the district court and the order overruling her motion for a new trial.
The claim was based upon services alleged to have been rendered, pursuant to an oral contract, by Mary B. Davis to Frances A. Johnson, now deceased. The period during which intermittent services were alleged to have been rendered ended approximately thirteen and one-half months prior to the death of Frances A. Johnson. No claim was ever presented to the deceased during her lifetime. The-claim was allowed in the probate court, and appellee in this court, Charles M. Fraser, administrator of decedent’s estate, appealed to the district court. The latter court disallowed the claim. The claimant is the appellant here. For clarity we shall refer to the claimant as the plaintiff and to the administrator as the defendant.
Frances A. Johnson died April 15, 1941. The services for which plaintiff sought compensation were alleged to have been rendered pursuant to separate and distinct calls by the deceased during her lifetime and between the dates of November 7, 1937, and March 3, 1940, inclusive. Her claim was filed in the probate court on March 12,1941. The express oral contract pleaded was as follows:
“Your petitioner, Mary B. Davis, who resides at Hiawatha, Kansas, states and alleges that Frances A. Johnson, during her lifetime became indebted to your petitioner on or about March 3, 1940, for and on account of an open account for a contract for personal services rendered said deceased, beginning on or about November 7, 1937, and continued to the date first set out. That the contracted value of said services and a true and correct statement of the same is as follows:”
Following the above allegation was set forth an itemized statement of the dates and amounts claimed for the services rendered. There were listed as many as four calls per day. The contract value of the services rendered for each call was alleged to be one dollar. The total amount claimed was $872. Phe total credits allowed for the amounts alleged to have been paid on various occasions was $47, leaving a balance claimed in the sum of $825, together with interest at six percent from March 3,1940.
At the conclusion of plaintiff’s testimony in chief the defendant moved that the court strike from plaintiff’s claim all amounts which were claimed for services alleged to have been rendered more than three years prior to the filing of the claim in the probate court. The motion was sustained. Defendant then introduced evidence which was designed to challenge the contention that such a contract had ever been made and that plaintiff had performed services for the deceased pursuant to any contract. Plaintiff introduced rebuttal testimony. Upon consideration of all the evidence the court was convinced the claim should not be allowed in any part, and so found.
As heretofore indicated, the ruling on defendant’s motion to strike affected only a part of plaintiff’s claim. The finding, however, of the trial court based upon all the evidence affects the entire claim. If no reversible error was committed in making that finding the decision must be affirmed. We shall therefore direct our attention to that finding.
Plaintiff erroneously argues that finding as though a demurrer had been interposed and sustained to her evidence. She claims there was uncontradicted evidence to support her claim and the court was therefore obliged to allow it. The contention cannot be sustained. Assuming there was no evidence which directly contradicted the testimony offered in her behalf, the trial court was not compelled to accept that testimony and to give effect thereto. As the trier of the facts, it was the province and duty of the court to determine what weight and credence it would give to the testimony of the witnesses on both sides of the case. Of course, a jury or court cannot arbitrarily or capriciously refuse to consider the testimony of any witness but, on the other hand, it is not obliged to accept and give effect to evidence which, in its honest opinion, is unreliable, even though such evidence is uncontradicted. (State, ex rel., v. Woods, 102 Kan. 499, 170 Pac. 986; Potts v. McDonald, 146 Kan. 366, 69 P. 2d 685; State v. Jones, 147 Kan. 8, 11, 75 P. 2d 230; Briney v. Toews, 150 Kan. 489, 494, 95 P. 2d 355; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812.)
Plaintiff contends this court has frequently reversed a trial court on findings of fact where there was no evidence to support the findings made. That is true where there were affirmative findings of fact unsupported by the record. Here, however, we have a negative finding of fact—a very different thing. (Potts v. McDonald, supra, p. 369.) Here the court, after hearing all of the evidence, was convinced the claim should not be allowed, and so found. The court quite apparently either did not believe the testimony offered in support of plaintiff’s claim or the evidence was not sufficiently clear and convincing to persuade the court concerning the validity of the claim.
Appellate courts cannot nullify a trial court’s disbelief of evidence (Kallail v. Solomon, 146 Kan. 599, 602, 72 P. 2d 966), nor can they determine the persuasiveness of testimony which a trial court may have believed. The appearance and demeanor of a witness, which appellate courts never have the opportunity of observing and which cannot be transmitted to the cold records of this court, may be, and sometimes are, far more persuasive than positive testimony.
It will serve no useful purpose to narrate the evidence. In passing, however, we may say there were various facts and circumstances in connection with the testimony offered in support of plaintiff’s claim which would appear to have justified serious doubt, if not absolute disbelief, with respect to the justice of the claim. Defendant’s testimony served to cast additional doubt upon various aspects of the claim. Manifestly we cannot disturb the judgment. It is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been sustained when the automobile in which plaintiff was a passenger collided with a truck that was parked on the street without lights. The action was against the driver of the car in which plaintiff was riding. Judgment was for the plaintiff. Defendant appeals.
The petition alleged that plaintiff had made a contract with defendant to take her from Hutchinson, Kan., to Stafford in his automobile; that he was in full charge of the machine and drove it so negligently that he drove it into the rear of a truck and trailer that was parked on the side of the street, and injured plaintiff.
The answer was a general denial and a special denial that plaintiff was a passenger for hire and an allegation that the collision was caused by the negligence of the driver of the truck; also an allegation that the plaintiff was guilty of contributory negligence.
The reply was a general denial.
At the close of the plaintiff’s evidence the defendant demurred to it on the ground that it did not prove a cause of action. The jury answered special questions and returned a verdict for plaintiff. Judgment was rendered on the verdict. Hence this appeal.
At the. outset it should be noted that the action was by a passenger in an automobile against the driver of it; there was no allegation that the defendant was guilty of gross and wanton negligence— hence, plaintiff, in order to recover against defendant, had the burden of establishing that she was a passenger for hire. (See G. S. 1935, 8-122b.)
We shall examine the evidence on that point. The plaintiff testified that she was a seamstress and lived at 129 East Second street, Hutchinson; that defendant had asked her if she wanted to go to Stafford with him sometime before .there was any transaction about a coat; that defendant delivered papers in his automobile on Sundays over a route that took him through Stafford and out to western Kansas; that defendant brought a leather coat to her that was ripped in the sleeve and she fixed it for him and charged him $1.25 for it; that defendant later asked her if she wanted to go to Stafford and she said she did and when he called for the coat and offered to pay for it she said “no” she would let the,repairing go on the expenses of herself and her son to Stafford. She then testified:
“Q. What did he say about that? A. Well, he first said, ‘You don’t owe me anything for going out there, that is all right. I will take you, I am going anyway, I am making the trip anyway and I will take you out.’
“Q. What-did you tell him? A. I told' him I didn’t want it that way; I paid my expenses as I went and when I don’t have them, I don’t go.
“Q. What did he say to- that? A. Well, if I felt that way about it, it was all right.”
Defendant argues here that the above testimony did not prove a contract of transportation between plaintiff and defendant within the meaning of G. S. 1935, 8-122b. He argues that the evidence proved that the real motivating cause of defendant having plaintiff in his car was a desire on his part to be accommodating and to extend to her and her son the hospitality of his car as far as Stafford, since he was going there in any event. He argues that the transportation with reference to the coat was only incidental to the above consideration.
In Druzanich v. Criley, (Cal. App.) 107 P. 2d 445, the court, in dealing with a similar question, said:
“ ‘Where a special tangible benefit, to the defendant was the motivating influence for furnishing the transportation, compensation may be said to have been given. But it is not given where the' main purpose of the trip is the joint pleasure of the participants. The payment of a portion of the expense, as for gasoline and oil consumed on the trip, is merely incidental and does not constitute the moving influence for the transportation. The provocation for the offer of transportation remains the joint social one of reciprocal hospitality or pleasure. The same conclusion was announced in Rogers v. Vreeland, 16 Cal. App. 2d 364, 60 P. 2d 585, under similar facts, and we perceive no necessity for adopting a different rule in construing the language employed by the legislature.’ See, also, Stephen v. Spaulding, 32 Cal. App. 2d 326, 89 P. 2d 683.
“(1) A review of the cases cited indicates, as was aptly stated by the court in Duclos v. Tashjian, 32 Cal. App. 2d 444, 450, 90 P. 2d 140, 143, that, the relationship of passenger arises when a journey is undertaken not as an act of hospitality nor as a favor, ‘but as a real and vital part of his business, with an eye to. his own profit . . . not as a means of obtaining free transportation, but as an integral part of a business transaction,’ ” (p. 447.)
In Arkansas Valley Cooperative Rural Elec. Co. v. Elkins, 141 S. W. 2d 538, it was said:
“In determining who is a ‘guest’ within meaning of the statute precluding recovery by a guest from driver of an automobile for injuries resulting from its operation, unless injuries are caused by the willful misconduct of driver, one important element is the identity of the persons advantaged by the carriage, and if the carriage tends to the promotion of mutual interests, of both passenger and driver, or if it is primarily for the attainment of some objective or purpose of driver, the passenger is not a ‘guest’ within the statute.” (Headnote 12.)
See, also, Fuller v. Tucker, 4 Wash. 2d 426, 103 P. 2d 1086; Payne v. Fayetteville Merc. Co., 150 S. W. 966 (Ark.); Bushouse v. Brom, 297 Mich. 616, 298 N. W. 303; Scotvold v. Scotvold, 298 N. W. 266 (S. Dak.); and Guiney v. Osborn, 295 Mich. 559, 295 N. W. 264.
Applying the rule laid down in the above cases to the present situation and giving the plaintiff the benefit of all reasonable inferences to be drawn from her evidence, we have concluded that the arrangement between herself and defendant as to payment for repairing the coat was only incidental to the business for which he was making the trip to Stafford and beyond. There had been talk about plaintiff going as far as Stafford with him before he brought the coat in to be repaired. There can be no doubt that he would have gone there anyway, regardless of any arrangement with plaintiff. G. S. 1935, 8-122b, was enacted to make it more difficult for guests to recover damages, from their hosts on account of injuries sustained in automobile wrecks. It would not do to exempt carriers for hire from liability for such damages, so the provision making an exception in cases where the guest paid for his transportation was written into the statute. The intention was, however, that the exception should apply only where the payment was the chief motivating cause for the trip or carriage, not to a case such as we have here where the trip would have been made in any event by the driver of the car, and the plaintiff was in the car, in the main, on account of a desire on the part of the defendant to be accommodating and to extend the hospitality of his car to her and her son.
• Plaintiff has cited and relies on decisions from other jurisdictions which seem to hold contrary to the views expressed here. We have examined these authorities. In .most instances we find them not to be in point. In the cases where there appears to be a conflict we prefer the reasoning of the authorities which support the views herein expressed.
The above conclusion requires a holding on our part that the trial court erred in overruling the demurrer of the defendant to the evidence of plaintiff.
There is another reason why this ruling was error. The most liberal interpretation that can be given the contract about which plaintiff testified is the contract which she made was for herself and her son to be transported in the automobile of defendant from Hutchinson to Stafford. This contract was for transportation not to begin until the trip to Stafford actually started. It did not cover incidental driving about the city of Hutchinson, which had nothing to do with the trip from Hutchinson to Stafford.
Plaintiff testified that when she and defendant left her residence in defendant’s car they started east on Fourth street to “Ma Lundreys” to get some sandwiches, and that after they got the sandwiches they were going to come back to the skating rink and pick' up her son. The collision occurred when the car was being driven between the residence of plaintiff and the place where they were to obtain the sandwiches. This was no part of any trip from Hutchinson to Stafford. It was clearly incidental driving indulged in for the mutual pleasure of plaintiff and defendant. In view of that fact, we hold that even though there had been a valid contract whereby the plaintiff was to pay defendant for transporting her and her son from Hutchinson to Stafford, the trip that she was making at the time she was injured was not part of this contract and did not come under the exception set out in the statute. This conclusion requires a holding that the‘trial court erred in overruling the demurrer of defendant to the evidence of plaintiff.
The judgment of the trial court is reversed with directions to enter judgment for the defendant.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a workmen’s compensation case. The trial court denied compensation. Claimant has appealed.
The facts are not seriously controverted. Respondent operates a railroad through several states. It has a roundhouse in Kansas City, where its engines used in interstate transportation are taken to be cleaned and to have the paint renewed where it has been chipped or broken. Claimant was employed by respondent. His duties were to clean and make minor paint repairs on engines, used as above described, set in the roundhouse for that purpose. His day’s work began at 7 o’clock in the morning. There was an office about a block away from the roundhouse where he reported each morning before beginning his day’s work. On the day of his injury he reported at the office a few minutes before 7 o’clock, changed his street clothes for his working clothes, and started to walk to the roundhouse. There was ice on the sidewalk. He slipped, fell, and sustained an injury to his elbow and other less serious injuries.
The principal question in the case is whether the injury arose under our workmen’s compensation law (G. S. 1935, 44-501 et seq.), or such remedy as he had was under the federal employers’ liability act. (45 U. S. C. A., § 51, as amended August 11, 1939.) Clearly his remedy would have been under the federal act if he had actually been working on the engine at the time of his injury. (Krouse v. Lowden, 153 Kan. 181, 109 P. 2d 138.) Counsel for claimant points out that claimant had not reached the roundhouse. He cites and relies heavily on our opinion in Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818, where the syllabus reads:
“Where an employee whose working day began at 7 a. m. arrived at his place of employment a few minutes prior thereto, registered his attendance, and went to a dressing room provided by his employer, and there sustained a fall and. injury while putting on his overalls, from which injury and other infirmities he died, it is held that the accidental fall and injury were incidents of the employment and his dependent widow was entitled to compensation.” 013.)
Counsel stresses the holding, “that the accidental fall and injury were incidents of the employment.” In that case there was no question of the federal employers’ liability act, and had the workman reached his place of employment the parties would have been operating under our workmen's compensation law. That is not true here. The employment of the claimant was under the federal employers’ liability act, and it necessarily follows that if the fall and injury were incidents of the employment they were incidents of his services under the federal employers’ liability act. (See Nor. Car. R. R. Co. v. Zachary, 232 U. S. 248, 34 S. Ct. 305, 58 L. Ed. 591, where the facts are much like those here involved.) See, also, Piggue v. Baldwin, 154 Kan. 708, 121 P. 2d 183; Shanks v. Union Pac. Rld. Co., 155 Kan. 584, 127 P. 2d 431, and other authorities referred to in the cases cited.
The result is the trial court correctly held that claimant cannot recover under our workmen’s compensation act. We need not consider the additional question argued as to whether the accidental injury arose out of and in the course of the employment, but on that point see Repstine v. Hudson Oil Co., 155 Kan. 486, 126 P. 2d 225.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment in an action for a declaratory interpretation of a certain feature of G. S. 1941 Supp. 79-2801 et seq., which deals with the foreclosure of tax liens on lands sold for delinquent taxes and bid in for the county.
It appears that Sedgwick county has a long-standing financial problem arising from the nonpayment of taxes on real estate. At the present time there are more than 11,000 tracts and parcels of land in that county on which no taxes have been paid for many years, as to all of which the annual mummery of advertisement for sale and bidding in for the county is followed at great expense to the county but which brings no cash into the coffers of the county treasurer.
While this financial dilemma is primarily the concern of the board of county commissioners as the business managers of the county’affairs (G. S. 1935, 19-101; Comm’rs of Leavenworth v. Brewer, 9 Kan. 307, 318), the problem not only adversely affects the fiscal system of the' county but likewise those of every township, city, board of education and school district in the county, and measurably affects the general revenues of the state itself.
As early as 1877 the legislature set about the task of devising some effective means to relieve the counties of the financial embarrassments arising from the failure of the ordinary statutory processes for dealing with delinquent tax lists. By chapter 39 of the Session Laws of that year, a statute was enacted which authorized the institution of an action to establish a lien on lands bid in by the county and which had been unredeemed for three years, and to re duce such lien to judgment in rem and to sell the properties affected as upon execution. This statute was repealed by chapter 43 of the Session Laws of 1879, with a proviso that actions pending which had been based on the statute should not be affected by the repeal but should be prosecuted to final judgment.
The next legislative attempt to deal with the chronic ailment of delinquent tax lists appears to have been the enactment of chapter 392 of the Laws of 1901, G. S. 1901, § 7718 et seq., entitled “An act in relation to the collection of delinquent taxes on real estate, and providing a remedy for sale thereof by decree and order of court.” Its general terms remained unmodified by the general revision of 1923, and the annotation to R. S. 79-2801 shows that advantage was frequently taken of its terms, and occasionally required the attention of this court.
Amendments to the statute of 1901 were enacted in 1931 (ch. 306), and in 1933 (ch. 312, § 11), which are reflected in G. S. 1935, 79-2801. The latest enactment which amends and repeals many of the earlier provisions of our taxation statutes is chapter 375 of the Laws of 1941 (G. S. 1941 Supp. 79-2801 et seq.), some of which will require critical examination as we proceed.
The foregoing résumé of statutes running over sixty years of Kansas history, but which may not be complete, is marshaled here to emphasize what we recently said in the tax foreclosure case of Shawnee County Comm’rs v. Abbott, ante, p. 154, 123 P. 2d 318 (decided March 21, 1942), concerning the responsibility of all who have official part in public affairs, including the judiciary, “to search for a practicable construction of statutory powers, duties and regulations which will permit the , government to work, to work effectively,” (p. 158) and to refrain from any unnecessary judicial pronouncements which will render abortive the efforts of the legislature to deal with state and local governmental problems in realistic fashion.
The official census of 1940 states that Sedgwick county has a population of 128,142, and we take official cognizance that the development of war industries in and near Wichita has recently brought a large increase of population to that community. In the argument of this case it was stated that this recent influx of population is estimated at 30,000 people. Consequently there is an acute demand for building sites to supply the need for homes for this vast number of newcomers. This demand can be satisfied only by sale in foreclosure of some thousands of Wichita town lots and parcels of land in and near Wichita on which the county has liens for -unpaid taxes which have piled up during the last quarter of a century. To energize the prosecution of such foreclosure suits to judgment and to dispose of the affected properties by execution sales, so that clear and unimpeachable new titles will issue to the purchasers of these foreclosed properties (Van Doren v. Etchen, 112 Kan. 380, 211 Pac. 144), the latest statute makes it the imperative duty of the county commissioners to order the county attorney to institute foreclosure proceedings “in all cases in which real estate has been or shall be sold and bid in by the county at any delinquent tax sale and shall remain or shall have remained unredeemed for the period of three years after such sale.” Failure to perform this duty by a county commissioner or county attorney shall work a forfeiture of his office. For the most part the means by which the county commissioners may discharge the many and varied duties imposed on them are supplied by express statutes, although occasionally the courts have had to concede that there is a narrow field in which the doctrine of implied powers must be permitted to operate as in State, ex rel., v. Younkin, 108 Kan. 634, 196 Pac. 620, where it was said:
“When the legislature confers power in general terms upon an official body, without prescribing the details for the exercise of that) power, the courts will not be officious to interfere with the official body’s discretionary methods of performing the public duty intended by the legislature in granting such powers. (Fairchild v. City of Holton, 101 Kan. 330, 333, 166 Pac. 503; The State, ex rel., v. Travis, ante, pp. 257, 260, 195 Pac. 182.)” (p. 639.)
The pertinent syllabus of the same case reads:
“When, by statute, official powers and duties are conferred or imposed upon a public officer or official board, the only implied powers possessed by such officer or board are those which are necessary for th’e effective exercise and discharge of the powers and duties expressly conferred and imposed.” (Syl. 114.)
Other cases recognizing this principle of statutory construction are Jones v. Board of Medical Examination, 111 Kan. 813, 815, 816, 208 Pac. 639; State, ex rel., v. Wooster, 111 Kan. 830, 835, 208 Pac. 656; State, ex rel., v. Davis, 114 Kan. 270, 289 et seg., 217 Pac. 905; State, ex rel., v. Bradbury, 123 Kan. 495, 498, 256 Pac. 149.
The courts cannot shut their eyes to the realities of such a situation as now confronts the county commissioners and county at torney of Sedgwick county in their efforts to comply with the imperative mandate of the legislature, and some leeway must be accorded them as to the means by which their prodigious task of preparing and prosecuting to a conclusion tax foreclosure suits affecting 11,000 tracts of land can be accomplished.
In the exercise of their discretion, and on the assumption that it is within their implied powers, the county commissioners have made arrangements with firms of abstractors in Wichita to make the requisite examination of the public records to ascertain who may have some color of interest in the lands which are to be subjected to foreclosure and sale to satisfy the county’s tax liens, so that all such persons may be impleaded in the actions, and so that the new titles which will vest in the purchasers on confirmation of the foreclosure sales shall be clear, paramount and unassailable. (Shawnee County Comm’rs v. Abbott, supra.) By these arrangements the abstractors are to provide certificates of title pertinent to each tract of land on which foreclosure of the county’s tax lien is sought, and the county will pay $7.50 for each certificate. Such sums are to be paid out of the general fund of the county. By another arrangement the county board has tacitly agreed to employ attorneys to assist the county attorney in these tax foreclosure suits and to pay for the services of such attorneys out of the county general fund.
These arrangements have precipitated the action with which we are presently concerned. The plaintiff is a Sedgwick county taxpayer who apparently brought this action under authority of G. S. 1935, 60-1121 to obtain a declaratory judgment on the authority of the county board to make these arrangements at the expense of the county.
The pertinent facts were developed by the pleadings and by stipulation of counsel. The obvious importance of the legal questions prompted the four trial judges of the district court to hear the cause en banc. The court reached unanimous conclusions of law and fact, which read:
“That in order to proceed under chapter 375 of the Session Laws of Kansas for 1941—
“(a) It is necessary for the county attorney, before filing tax foreclosure suits, to have a search made of the record title of the real estate upon which the foreclosure suits are to be filed for the purpose of determining the names of persons claiming or asserting interest in the property, and the court further finds that the county attorney’s office does not have sufficient help to make this search, and, therefore, it is necessary to incur certain expenses incidental to the filing of the tax foreclosure suits;
“(b) That the expenses incurred in this way cannot be included as costs in the foreclosure action.
“Now, therefore, it is considered, ordered and adjudged by the court that in order to proceed under chapter 375 of the Session Laws of Kansas for 1941—
“(a) It is necessary for the county attorney, before filing tax foreclosure suits, to have a search made of the record title of the real estate upon which the .foreclosure suits are to be filed for the purpose of determining the names of persons claiming or asserting interest in the property, and the court further finds that the county attorney’s office does not have sufficient help to make this search, and, therefore, it is necessary to incur certain expenses incidental to the filing of the tax foreclosure suits;
“(b) That the expenses incurred in this way cannot be included as costs in the foreclosure action.”
The cause is brought here for further review.
Under the doctrine of implied powers which we have discussed above, there can be no doubt that the county commissioners can contract with abstractors to pay reasonable sums for their necessary services in searching the records to ascertain who may be the owners or supposed owners and “all persons having or claiming to have any interest” in each particular tract of real estate on which foreclosure of the county’s tax lien is sought, so that they may be impleaded and bound by the judgment. (G. S. 1941 Supp. 79-2801.) But is it imperative that such necessary service of abstractors can only be paid out of the general fund of the county—after appropriate and timely provision is made therefor in the budget and cash-basis statute? This court is inclined to hold that there is much merit in the appellant’s contention that such service is a proper charge to be allowed by the court in the foreclosure action—not necessarily $7.50 for each search and certificate relating to each separate tract of land as agreed to between the county board and the abstractors, but whatever charge for such service the court itself should find to be reasonable. The court itself has the duty to ascertain and “in the decree [to] state the name or names of the particular defendant or defendants who has or who claims to have any interest in the tract, lot or piece of real estate upon which a lien is fixed by order of the court.” (G. S. 1941 Supp. 79-2802.) To properly discharge that duty the court is certainly empowered to call the abstractors to testify or more conveniently to certify to the court the names of the persons who are to be bound by the judgment. Of course, if abstractors are called as ordinary wit nesses to testify as to what they know they are entitled to no more than the regular witness fees (Swope v. State, 145 Kan. 928, 67 P. 2d 416), but where they have to make special preparation, as experts, to assist the court, they are entitled to special compensation to be included as “charges” in the judgment. (70 C. J. 76.) And the court can include in its judgment a reasonable charge for such abstractor’s service. If we were required to rely on analogous precedents for such charges- they would not be hard to find (Pitts v. Milling Co., 117 Kan. 626, 630, 233 Pac. 114; Central Trust Co. v. Harris, 152 Kan. 296, 103 P. 2d 902; 7 R. C. L. 783, 785, 786, 796, 797; 20 C. J. S. 300, 361), but the legislature has saved us the trouble by expressly sanctioning them. In G. S. 1941 Supp. 79-2803, it is provided that included in the judgment shall be the tax legally assessed against each piece of -real estate, together with the interest, charges and penalty to the date of the judgment, and to order the sale thereof “for the payment of such taxes, charges, interest and penalty and the costs of such proceedings and sale.” No courthouse official needs elucidation of the terms taxes, interest, penalty, and costs. They deal with them every day. But the term “charges” is newly introduced into the tax foreclosure statute by the amendment of 1941. It does not appear in G. S. 1935, 79-2803, which it supersedes. We think it was intended to include just such unusual .charges in these tax foreclosure suits as would not fall in the familiar category of costs. It has a broader meaning than that of costs. (Black’s Law Diet., 3d ed. 310.)
It might be argued that the point is not important, since the money to pay the abstractors’ charges will have to come out of the proceeds of the foreclosure sales anyway, whether they are paid by the clerk of the court on order of court or by the county treasurer on county warrants. But if no provision has been made in the county budget to pay these charges there may be difficulty or delay in their payment. Their payment as legitimate charges in the litigation to be allowed and paid by the court will create no difficulty whatever. Moreover, there is another feature of the statute of 1941 which is not without significance. It provides that if the owner of the property comes forward with the money to redeem his property before it is sold by the sheriff, he is excused from paying the “charges” such as we have discussed and which are authorized to be included in the judgment along with the taxes, charges, interest,- penalty and costs. All he is required to pay is the amount of the lien with interest at 10 percent with a propor tionate share of all cost and. accrued costs. Reasoning thus, if the delinquent taxpayer redeems before the sheriff’s hammer falls, he is to be excused from paying the abstractor’s charge, which is of no service to him, but which is a service to the court, to the plaintiff and to a purchaser at the foreclosure sale.
It is also contended that the trial court erred in holding that attorneys’ fees in these tax foreclosure suits cannot be allowed as "charges” under the statute of 1941. We think this matter is on quite a different footing from the abstractors’ charges. In the matter of payment of compensation for abstractors’ services there is no statute directly on the point. The power to pay them is deduced by necessary implication—that the mandate of the legislature may be obeyed by the county board, the county attorney, and by the court itself. But in respect to the employment of attorneys to assist the county attorney and his staff of assistants whose positions are created by express statute (G. S. 1941 Supp. 28-604), the board of county commissioners is authorized by two express provisions of statute to employ additional counsel, viz.:
“That when, in the judgment of the board of county commissioners of any county in this state, it becomes necessary or expedient, the said board of county commissioners may employ an additional attorney at law to assist the county attorney of its county in any specific investigation; prosecution or any civil or criminal matter involving the duties of said county attorney, and the said board of county commissioners may pay such attorney so employed reasonable compensation for his services, the same to be charged to the general fund of said county.” (G. S. 1935, 19-723.)
“That in any civil litigation wherein the county may be either plaintiff or defendant, if the county attorney or his deputies are interested directly or indirectly, or if the board of county commissioners believes that the time at the disposal of the county attorney’s office is insufficient to give proper attention to such litigation or if for any other reason the board of county commissioners deems it necessary for the protection of the public interests, it may employ special counsel for such case or cases and pay reasonable compensation therefor, not exceeding the sum of three thousand dollars in any one year.” (G. S. 1935, 28-319.)
The express provisions of statute just quoted leave nothing open to construction nor for the operation of implied powers.
It follows that the district court’s judgment should be modified insofar as it denies that court’s authority to include in the judgment in tax foreclosure suits reasonable compensation as charges for the necessary services of abstractors; and in all other respects the judgment is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
Appellant sought to establish claims against the estate of her deceased husband. A motion to strike certain parts of the petition, a demurrer, and a motion to dismiss were sustained, and she appeals. Two principal questions are presented—whether the statute of limitations runs as between husband and wife, and whether the petition stated a cause of action.
C. A. Crawford, a resident of Pawnee county, died intestate on September 10, 1939, leaving as his heirs at law the widow, Annis L. Crawford, and Mildred Grace Rucker, a daughter by an earlier marriage. The widow and daughter were named jointly as administratrices, and on January 3, 1940, inventory and appraisement were filed showing personal property valued at $2,014.91 and farm land valued at $12,999. The only claims presented were the funeral bill and that of the widow, here involved. The regularity of the procedure is not questioned.
Appellant’s amended petition alleged in substance that at the time of his death her husband was indebted to her in the sum of $10,350.63 “for money and property of her separate estate which he had taken, held, used, sold, invested, commingled with his own property and spent,” and that such money and property “were not acquired by decedent from petitioner’s separate estate by gift or purchase.” The alleged indebtedness was itemized under four general classes. In Item I were listed, by date and amount, one hundred and three checks, covering a period from December 1, 1914, to November 19, 1928, which, it was alleged, constituted “money of petitioner’s separate estate taken by decedent’s drawing checks upon petitioner’s bank account and all used for his own personal use, benefit, business and affairs.” These items totaled $4,980.67. In Item II were likewise listed one hundred and eleven checks, written by petitioner, covering a period from August 25, 1914, to September 11, 1939, and totaling $935.46, which it was alleged constituted “money of petitioner’s separate estate necessarily advanced for the use and benefit of decedent by petitioner’s payment thereof for necessities of life which decedent was legally obligated to provide for petitioner, thus creating by implication of law a trust relationship whereby decedent was and is obligated to repay petitioner for her said advancements for his use and benefitIn Item III were listed certain livestock and seed wheat which petitioner alleged either belonged to her separate estate at the time of her marriage in 1914, or was inherited from her father’s estate in 1919, or taken and used by her husband in 1920, and all of which, of an alleged value of $4,309.50, “was taken by decedent and used for his own personal use and benefit.” Item IV consisted of two alleged loans to decedent in 1915, for “purchase of a suit of clothes” and “payment of wages of a farm laborer,” and one in 1924 “for travel expenses of decedent on a trip to Illinois,” the three alleged loans totaling $125.
Decedent’s daughter, Mildred Grace Rucker, was appointed sole administratrix for the purpose of hearing the widow’s demand. At the hearing in the probate court the administratrix moved to strike from the petition all of Items I, III and IV and all of the separate items in Item II up to and including the check written by claimant on July 28, 1937, on the ground that it appeared on the face of the petition that all such claims were barred by the three-year statute of limitations. (G. S. .1935, 60-306, Second.) The administratrix also moved to strike out the words heretofore indicated by italics in Item II, on the ground that such allegations constituted a mere conclusion of law. The administratrix also demurred to the petition on the ground that no cause of action was stated against the estate, and also moved to dismiss the petition. The motions and demurrer having been overruled in probate court, appeal was taken to the district court, where, after hearing, the motions and the demurrer were sustained.
The question whether statutes of limitation run as between husband and wife has not been passed upon directly by this court. The decisions in other jurisdictions must, of course, be viewed in the light of the provisions of law upon which they are based. While an apparent conflict in such decisions disappears, in many cases, upon critical examination of the divergent statutes underlying them, a wide and irreconcilable conflict of authority still remains. (34 Am. Jur. 292, § 377; 121 A. L. R. 1384-1396; 30 C. J. 991; 37 C. J. p. 1012, § 408.) Appellant recognizes this conflict, but urges that the majority rule is that the statutes do not begin to run until the marriage relationship ceases, and cites generalizations of textbook writers which support that contention. We need not attempt here to balance these conflicting holdings against each other. It is sufficient to examine the question in the light of our own statutes and decisions.
Decisions grounded on the common-law disabilities of coverture are obviously not in point -in jurisdictions where such disabilities have been abrogated. No state has gone further than this state in doing away with súch disabilities and in establishing the full equality of women, whether married or single, with men under the law. Our constitution directed (art. 15; § 6) that “The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children." By the Married Women’s Act of 1868 and by subsequent enactments (G. S'. 1935, 23-201 to 23-207) a married woman retains as her sole and separate property any property which she owned at the time of her marriage or which may come to her after marriage, either by descent, devise, bequest, or gift from any person except her husband, and such property is not subject to her husband’s debts or to disposal by him; she may sue and be sued in the same manner as if unmarried; she may carry on trade or business and perform any labor or services on her sole and separate account and retain the earnings therefrom as her sole and separate property; she may bring action in her own name to recover damages, for the benefit of her husband, for personal injuries impairing her ability to perform domestic duties; if her marriage took place outside this state and her husband becomes a resident of this state she retains all the property rights which she had acquired under the laws of any other state, and she may freely enter into reasonable and equitable marriage settlements or contracts. Such is the broad background in which the instant question must be viewed in this state.
In many states the statutes of limitation contain express provision that they shall not run as between husband and wife. Our statutes (G. S. 1935, ch. 60, art. 3) contain no such reservation or exception. The establishment of exemptions or exceptions to statutes of general application is a legislative and not a judicial function. Upon this point appellant relies upon a • general provision of our statute (G. S. 1935, 60-307) which reads:
“If a person entitled to bring an action . . . be at the time the cause of action accrued under any legal disability, every such person shall be entitled to bring such action within one year after such disability shall be removed.” (Italics supplied.)
Her contention is that the marriage relationship constitutes a “legal disability” within the meaning of the statute, even though legal disabilities imposed by the common law have been removed. There are cases supporting that view. (34 Am. Jur. 167, § 209.) On the other hand, there are many courts which hold that even where the statutes of limitation have a specific provision tolling the statute as between husband and wife, the subsequent passage of Married Women’s Acts abrogating the common law disabilities incident to coverture, repeals, by necessary implication, the exemption in the statutes of limitation. (McIrvin v. Lincoln Memorial Uni versity, 138 Tenn. 260, 197 S. W. 862. For statement of conflict of authority on this question see L. R. A. 1918C, 193 et seq. Also, 37 C. J. 1012, § 408, note 60.) And while there is also conflict on the question of whether a statutory provision, such as ours, giving a married woman the right to sue and be sued in the same manner as though single gives her the right to sue her husband (see 27 Am. Jur. 190, § 588), it is stated in Corpus Juris (30 C. J. 991, §728) that where married women are empowered to sue, as if single, a proviso in statutes of limitation exempting married women from the bar of the statute is generally held to be repealed. Furthermore, the general rule is that even without the aid of a statute a married woman may sue her husband in respect to her separate property or to recover money loaned to him from her separate estate. (30 C. J. 954, § 674.)
In the light of our liberal and far-reaching statutes in behalf of married women, we do not think it can be said that the marriage relationship constitutes a “legal disability” within the meaning of 60-307 above. It was said in Putnam v. Putnam, 104 Kan. 47, 52, 177 Pac. 838, that “the term ‘coverture’ is hardly known in the Kansas language; the wife is not under legal disabilities of any sort.”
Appellant makes two further arguments against imposing the bar of the statute against her claims. The first is that as a matter of public policy the statute should not run during marriage because domestic discord would be promoted if a wife, in order to protect her rights, were compelled to bring action to enforce her husband’s indebtedness to her. In addition to the fact that our legislature has not embodied that view in our statutes—as some states have done in the proviso relating to marriage—it may be said that from the standpoint of public policy there is also something to be said on the other side. What about the jeopardy to the interests of other heirs—in this case the decedent’s daughter and appellant’s stepdaughter—if a widow were permitted to set up old claims against her husband, supported only by her own averments and which the other heirs would frequently have no means of disproving? Apparently the legislature was not convinced that heirs other than the widow should be thus subjected to such possibility of losing their rightful inheritance.
Appellant’s second argument is that the claims are not barred because a trust relationship existed, as alleged in the petition. In the first place, no facts were alleged which would create a trust. The bare allegation of the petition that a trust was created is a mere conclusion of law and was rightly stricken from the petition. No express trust was alleged; no allegation that there was any understanding or agreement between appellant and her husband that he would hold the property or the money received in trust for her. The mere fact that she turned over property to her husband or paid bills for him was not in itself sufficient to create a trust by implication of law. (Clester v. Clester, 90 Kan. 638, 135 Pac. 996; Pricer v. Simonton, 134 Kan. 211, 5 P. 2d 835; Fooshee v. Kasenberg, 152 Kan. 100, 102 P. 2d 995.) Furthermore, petitioner does not attempt to impress a trust upon any particular property. She does not contend that any of her property which she alleges was taken by her husband and used for his own benefit is still in existence. She presents her demands solely as a general creditor.
We conclude that the trial court was correct in holding that the statute of limitations was applicable to appellant’s claims.
After striking from the amended petition all items which on their face are barred by the three-year statute of limitations there remain only twenty-six items in a total amount of $238.26. These items consist of bank checks which appellant herself wrote on her own account, payable to various persons and concerns, and which she alleges were advanced to her husband to cover expenditures which he was legally obligated to make for her support. We think the question of whether as to these items the petition stated a cause of action requires only brief comment. The petition in no way indicates the nature or purpose of these expenditures; it contains no allegation that there was any agreement or understanding between her and her husband that he was to reimburse her for the money so advanced for his benefit; there was no allegation that the alleged transactions were not freely entered into by appellant or that there was any breach of faith on the part of the husband. There is no allegation that she ever asked him to make repayment or sought in any way, during his lifetime, to protect the claims which she now makes. We think that no cause of action was stated and that the demurrer was properly sustained. '
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The present appeal grows out of a controversy as to the ownership of three hundred twenty acres of land in Ellis county and as to who is entitled to shares in moneys arising from an oil and gas lease thereon. The land is hereafter referred to as the real estate.
As commenced, the action was one for a declaratory judgment as to who were devisees under the will of Anna Froelich, but under answers and other pleadings there was presented not only the construction of the will, but whether there had been a settlement as to ownership of the real estate and the moneys arising under the oil. and gas lease. The appeal pertains to these matters only and we need not mention some other matters wdiich engaged the trial court’s attention but are not material here.
After hearing the evidence the trial court made findings of fact and conclusions of law upon which it rendered judgment that seven of the defendants, all of whom were children of Henry Froelich, deceased, were not devisees under the will of Anna Froelich, and they appeal.
Appellants do not complain of the findings of fact, but only of the conclusions of law based thereon, and if their contention is sustained ' it is not necessary to notice assignments of error with respect to other matters.
As the findings of fact are long and cover matters not of present importance, we shall summarize rather than quote them.
Anna Froelich at the time of her death on November 18, 1919, owmed the particular real estate and other real and personal property. She was survived by four sons, three daughters and the children of her son Henry, who had died on March -24, 1919. On July 15, 1919, Anna Froelich made her will, and after her death and on November 24, 1919, it was duly admitted to probate, the executors therein named duly qualified, the estate was administered, and on May 1, 1922, the administration was closed and the executors discharged. Under the will, Anna Froelich made specific bequests to her church and to an orphans’ - home and provided for the erection of a tombstone on her grave. She also made a specific devise of certain real estate, other than that herein involved, to her daughter Anna on conditions which seem to have been met. The sixth paragraph of her will referred to the land presently involved, and provided that so long as her unfortunate son George lived the land was to be rented and the income used for his support, and that her son Frank should look after George. It was then provided that after the death of George the farm should be sold, and the proceeds, together with all other unexpended moneys, credits or other property, whether real, personal or mixed, “I give, devise and bequeath to all of my children, share and share alike, after all of the foregoing- bequests shall have been first paid,” and she further provided that if her son Charley died before a distribution was had his share should go to his children by his first and second marriages. The court found that after the mother’s death certain of the children had died, leaving certain named heirs, and that some of them had made conveyances of their interests, but the regularity thereof not being now important we do not detail these changes. In April, 1921, a partial distribution of the estate was made under order of the probate court and an undivided one-seventh of the moneys disbursed was paid to the children of Henry Froelich. On final settlement of the estate on May 1, 1922, under order of the probate court the balance then on hand was distributed, the Henry Froelich children receiving an undivided one-seventh. After the closing of the estate, Frank Froelich and Henry Hoff, who were the executors, as self-styled trustees, continued to rent the lands and made provision for the son George until his death on April 13,1931. Just when Henry Hoff ceased to act does not appear from the findings, but Frank Froelich continued to rent the land and to make distribution to the parties, including the Henry Froelich children. On May 26, 1936, two oil and gas leases covering all of the real estate were executed, by the then owners, the children of Henry Froelich joining in both leases, a producing well was brought in and they joined in division orders and began receiving an undivided one-seventh of the lessors’ share of the oil runs. The court further found that prior to August, 1937, all the parties believed the Henry Froelich children were entitled to a one-seventh share of the estate. In the latter part of 1937 or the early part of 1938 the oil company purchasing the oil raised some question as' to the interest of the Henry Froelich children and they procured counsel who prepared a deed from the other heirs to them for a one-seventh interest. When this deed reached the plaintiff he stated he wouldn’t sign a deed for them unless they would sign one for him and a second deed was prepared. The second deed was prepared by plaintiff’s own counsel and in reliance on plaintiff’s own statement as to title, etc. This latter deed referred to the Anna Froelich will, and provided that in consideration of the mutual covenants and agreements contained each party agreed with the others that the persons named owned in fee simple the undivided interest set opposite the name of each, this being followed by a list of the owners as of that date and their shares and including the seven children of Henry Froelich by name and showing each to be the owner of a one-forty-ninth undivided interest. The deed further provided that the oil runs should be settled on the same basis. The first signatures to this deed were procured September 24, 1938, the last on June 2, 1939. Although not found as a fact, the pleadings disclose this deed was filed for record on June 3, 1939. The present action was filed June 28, 1939.
So far as necessary to notice, the trial court’s conclusions of law were as follows: The will of Anna Froelich, executed July 15, 1919, leaves the property to her children, and her son Henry having died about four months before the will was made, his children took nothing under their grandmother’s will; that while family settlements are favorites of the law, it is necessary there be a consideration to render them valid, but in this case no family settlement was made, but the parties by mutual consent, based upon a mistake as to the rights conferred by the will, shared the income for a long period of time; that the deed merely confirmed the interests which the parties, other than the Henry Froelich children, then supposed they had in the land; that the Henry Froelich children gave nothing for any interest in the land, nor did they suffer any loss or detriment for their execution of the deed, and that the deed merely attempted to confirm rights as to them that did not in fact exist; that they had nothing to convey; there was no consideration for the deed and it was a nullity, and the court found the interests of the parties other than appellants on that basis and ultimately rendered judgment accordingly. Motions directed against the conclusions of law and for a new trial were denied and the children of Henry Froelich appeal.
The specifications of error include and the briefs cover not only appellants’ contention that they are beneficiaries included within the word “children” as used in the will, and other matters, but also a contention the trial court erred in concluding the family settlement-evidenced by the deed was not valid and enforceable. As we think a determination of the last contention is decisive of the appeal, we shall not discuss the other contentions.
The trial court recognized that family settlements are favored in law, but it was of the opinion the parties were mistaken as to their rights and there was no consideration for the settlement.
The binding force and effect of family settlements have been considered in many cases. In 12 C. J. 322 it was said:
“Compromises having for their object the settlement of family difficulties or controversies are favored at law and in equity if at all reasonable. The termination of such controversies is considered a valid and sufficient consideration for the agreement, and the court will go,further to sustain it than it would under ordinary circumstances. Accordingly, it has been laid down as a general rule that a family agreement entered into on the supposition of a right, or of a doubtful right, although it afterward turns out that the right was on the other side, is binding, and the right cannot prevail- against the agreement of the parties.”
(See, also, 26 C. J. S. 1108 et seq.; 11 Am. Jur. 258, and notes in 38 A. L. R. 734, 759, 54 A. L. R. 976, and 118 A. L. R. 1357.)
In West v. West, 135 Kan. 223, 9 P. 2d 981, the husband left a will giving all his property to four children by his first marriage. He gave nothing to his second wife, who survived him. After his will was admitted to probate, and prior to her election, she made certain statements as to her desires and a contract was made whereby she received a share less than she would have received had she elected to take under the statute of descents and distributions, and in substance, she filed an election to that effect. Later she sought to avoid the contract. Without detailing the reasoning, this court held the contract not lacking in consideration and legal and binding on the parties to it.
In Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021, a review was made of many of our decisions, and it was there held:
“Beneficiaries under a will have the right and power to contract between themselves for distribution of their respective portions of the estate in a manner different from that provided in the will; and such an agreement containing the mutual promises of the contracting parties is based upon a sufficient consideration.” (Syl. IT 1.)
A harsher rule is applied where the question of compromise and settlement does not affect family rights. In an action involving a settlement of a claim for personal injuries, this court, in Reed v. Kansas Postal Telegraph & Cable Co., 125 Kan. 603, 264 Pac. 1065, held:
“Where one in good faith asserts a claim not obviously invalid, worthless or frivolous, and which might be thought to be reasonably doubtful, the forbearance to prosecute such a claim will furnish a sufficient consideration for a promise of settlement and compromise of such claim.” (Syl.)
In discussing whether the facts found compel a conclusion a valid settlement had been made, we do not overlook the contention of the appellee that certain witnesses stated there had been no controversy. Those statements, however, cannot be isolated from other testimony, and the facts found refute any conclusion there was no controversy. We shall review the findings very briefly. When the order of par tial distribution of April, 1921, and the order'of final settlement of May, 1922, were made the probate court expressly included appellants as distributees, and neither the appellee or any other person affected appealed. Those orders pertained to personal property and became final. Under the will, the beneficiaries were not to receive real estate—the real estate was to be sold and the proceeds divided, and had that been done, the right and claim of appellants to share therein would likely have been determined and concluded by the order of the probate court on final settlement. The fact the real estate was not sold, that the proceeds were not on hand for division, and that a reconversion may be said to have taken place, certainly does not compel an indubitable conclusion that the appellants would not share. It also appéars that for some years appellants were recognized by appellee and others as having an interest in the real estate. All of them joined in the oil and gas leases, and after a production was had, they joined in division orders, and appellants participated in the distribution of the lessors’ share of the oil runs. Up to this time there was no controversy. Appellee and others in interest dealt with appellants as though the latter’s interest was unassailable. Only after the corporation purchasing the oil raised the question was there any doubt cast upon the interest of the appellants and then when appellants pressed for a recognition of their rights, appellee refused unless his rights were fixed. He then consulted counsel, told him as to the title, the will .of Anna Froelich, etc., and his counsel prepared the deed which was subsequently executed, delivered and made a matter of record, and which is now under attack as being 'without consideration. In addition to the above there was also to be considered appellants’ claim that they were included within the term “children” as used in the will. (For substantial authority that such claim might be good see notes 3 A. L. R. 1682,104 A. L. R. 282.)
Under the whole situation the possibilities of litgation and an uncertain result to any of the parties interested were apparent. It seems clear that appellants asserted their claims in good faith; that the claims were not obviously worthless or frivolous; but that on the other hand they were substantial. It cannot detract from any settlement that they got more or less than they would have received at the end of a lawsuit, or that they received exactly what they would have taken had the entire matter been tried out. Neither would the settlement be bad because the other parties might have received more had an action been instituted and tried to a conclusion. The very purpose of such a settlement is to avoid the costs and uncertainties attendant upon litigation.
In our opinion the settlement evidenced by the deed was supported by a sufficient consideration and was valid and. binding upon the parties.
For'the reason that parts of the judgment rendered below are not in question here, we do not discuss those parts, but insofar as the judgment affects the rights of the appellants it is reversed and set aside and the cause remanded with instructions to the trial court to render judgment in favor of appellants and consistent with this opinion.
Allen, J., dissents.
Hoch, J., not participating. | [
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