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The opinion of the court was delivered by
Cunningham, J. :
Appellant was convicted of the crime of statutory rape, and appeals. The testimony of the prosecuting witness, that conception followed defendant’s connection with her, and that she was delivered of a child at about the time such an event might have been expected, and of an attending physician, that he was present and assisted at such delivery, was admitted over the objection of the de fendant that the same was incompetent, irrelevant, and immaterial. The court admitted it for the purpose of showing penetration. This was not error. It was clearly shown, and nowhere denied, that the prosecuting witness was unmarried and under the statutory age of consent;' so the fact that she had become pregnant and was delivered of a child proved that some one had committed upon her the crime charged. For this purpose the criticized testimony was very competent, material, and relevant. (People v. Flaherty, 27 Hun, App. Div. 535, 50 N. Y. Supp. 574; State v. Robinson, 32 Ore. 43, 48 Pac. 357.)
The appellant was a man sixty-eight years old. His wife testified that he had lost virility to the extent that he was incapable of having sexual commerce with a woman. This she knew from her intimate relations with him. Upon rebuttal • physicians were called and permitted to testify as experts that a man of that age who had lost sexual desire as to his wife might still have such desire and ability to consummate it upon other and younger women. We find no error here. The contention made was not one so clearly falling within the range of common experience and observation as to exclude expert evidence in proof of the same or that the jury might surely assume its truth without the evidence bf an expert.
For his defense defendant relied in part upon an alibi. This his evidence did not go to establish with any high degree of certainty. He did not request the giving of any instruction to the jury specially calling their attention to this matter or specially explaining the law applicable thereto, and no such instruction was given. This omission is very strenuously urged as error. It is true that section 236 of the criminal code (Gen. Stat. 1901, § 5681) requires that the judge charge'the jury in writing, and in such charge state to them all matters of law necessary for their information in giving their verdict. But this provision cannot be construed that instructions are to be in any particular form or are required to go into all the minutiee of the case. Its purpose is fully satisfied if such instructions be sufficient fairly to present the. salient features arising upon the law of the case. If more than this be desired by either party, it should be specifically requested, and may well be held to be waived if not so requested. It would manifestly be. practically impossible to go into all the minutiee of each case with detailed instructions, following up every near and remote application of law to facts or facts to law. Such detail and verbosity would tend to confusion and misdirection rather than to proper, or even necessary, information. In this case the court cautioned the jury that the guilt of the defendant must be established beyond a reasonable doubt, and that the presumption of his innocence clung to him until that degree of proof was attained. Of course, the claim that the defendant was not at the place when the alleged offense was committed within the range of time fixed by the prosecuting witness went to the very heart of the state’s proof, and the raising of a doubt upon this point would have been as fatal to a conviction as would have been a belief of his denial of the commission of the crime. So the general charge as to burden and quantity of proof required of the state substantially presented the question as it would arise upon the more specific direction of the attention of the jury to the matter of the alibi had the proof upon that subject been more satisfactory. It was said in The State v. Potter, 15 Kan. 302, 312:
“Now it may be laid down as a general rule that if the court gives in general terms the element^ of the crime, and is not asked by defendant to enlarge upon and explain further any particular element thereof, no error has been committed in failing to give fuller and more specific instructions which will justify an appellate coürt in a reversal.”
We approve of this statement of the law and think ,the requirement of the statute was sufficiently complied with in the case at bar, especially in the absence of any request for more specific instructions.
Complaint is made of the refusal of the court to give certain instructions. We do not think it well founded. It is also suggested that two of the jurors were permitted to leave the jury-room during the time of the deliberation of the jury and be absent therefrom for an unwarranted length of time. Upon this point there is a conflict in the showing. Under that made by the state by the affidavits of the jurors, nothing to be criticized occurred. Evidently thecourt, in overruling the motion for a new trial, took the view of the matter as disclosed by these affidavits.
Finding ho error in the record, we must affirm the judgment of the court below.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J.:
On December 12, 1903, Now-gezhuck, alias Tommy Walk-kas, a Pottawatomie Indian, filed in this court his petition in habeas corpus averring that he was unlawfully restrained of his liberity by the sheriff of Brown county, Kansas, and asking that he be discharged. The case is before us for determination upon the following agreed facts :
“It is agreed by and between the parties to this action that Now-ge-zhuck, alias Tommy Walk-kas, was born a member of the Prairie band of Pottawatomie Indians, of Jackson county, Kansas, and is still a member of said tribe of Indians, if their tribal relations were not dissolved by the allotment of lands, in severalty, to the members of said tribe under the act of congress, February 8, 1887. The said band , of Indians have made their home on the diminished Pottawatomie Indian reservation, in Jackson county, Kansas, for more than forty years; and Now-ge-zhuck, alias Tommy Walk-kas, has resided thereon during all his life, and resided thereon when arrested in Brown county, Kansas. About the year 1893, the Indians who composed the Prairie band of Pottawatomie Indians were alloted land in severalty, under the aforesaid act of congress, on the diminished Pottawatomie reservation, in said county and state, and each, including Now-ge-zhuck, alias Tommy Walk-kas, received his preliminary patent therefor, as provided by said act. The Prairie band of Pottawatomie Indians are, and have been for many years, under the charge of an agent, or a bonded superintendent, appointed by the secretary of the interior of the United States. These Indians still receive their annuities from the United States government. They also have a chief and council. About the — day of November, 1903, Now-ge-zhuck, alias Tommy Walk-kas, was attending the Indian payment of annuities on the Kickapoo Indian reservation, in Brown county, Kansas. The Kickapoo Indians are a tribe of Indians who are located upon the Kickapoo Indian reservation, in Brown county, Kansas. They have resided on said reservation for more than forty years. They have a chief and council, and are, and have been for many years; under the charge of an agent, or a bonded superintendent, appointed by the secretary of the interior of the United States, and still receive their annuities from the United States government. About the year 1893, the Indians who composed the Kickapoo tribe of Indians were allotted land in severalty, under the aforesaid act of congress, on the Kickapoo Indian reservation, in Brown county, Kansas, and preliminay patents were issued therefor. On the — day of November, 1903, Now-ge-zhuck, alias Tommy Walk-kas, while attending said payment, was ax’rested by the sheriff of Brown county, Kansas, on a warrant issued ,by the justice of the peace of Brown county, Kansas, on a complaint charging Now-ge-zhuck, alias Tommy Walk-kas, on the — day of November, 1903, with disturbing the peace and quiet of persons on said reservation in Brown county, Kansas, to which complaint he entered a plea of guilty of such offense and was adjxxdged to pay a fine of thirty (30) dollars and the costs of said action, and to be confined to said jail for a period of ninety days, and to be committed to said jail until said fine and said costs be paid. Prom such imprisonment Now-ge-zhuck, aims Tommy Walk-kas, asks to be released.”
It is- ux’ged that the state court, under the facts stated, had no jurisdiction to try or punish the petitioner, an Indian, for the offense committed. In de? termining the jurisdiction of the state court, that the question may be considered free from collateral issues the fact that petitioner entered a plea of guilty and the further fact that the offense was committed on the Kickapoo reservation will be treated as though the offense had been committed on the Pottawatomie reservation and petitioner had been tried and convicted.
The act of congress of May 30, 1854 (10 U. S. Stat. at L., ch. 59), organizing the territory of Kansas, and also the act of January 29, 1861 (12 U. S. Stat. at L., ch. 20), admitting Kansas as a state of the union, each in express terms provided that nothing therein should be construed to impair the rights of persons or property then pertaining to the Indians in the territory included in Kansas, so long as the rights of the Indians should remain unextinguished.by treaty with the United States, and that all lands in Kansas belonging to the Indians by treaty with the United States were excepted from, and constituted no part of, the territory of the state of Kansas, unless by treaty or authority of the United States jurisdiction should be extended to the state. From the reservations in these acts of congress it is manifest that the state could have no jurisdiction over the person or property of the Indian while upon the lands reserved, or of the lands so reserved, except by the act and authority of the United States. There is, however, no treaty, act of congress or law of the state that precludes the courts of Kansas from taking jurisdiction of the person and property of the Indians found within the territorial boundaries of the state, except while such Indians or property are actually situated on a reservation excluded from the jurisdiction of the state. (Rubideaux v. Vallie, 12 Kan. 28.)
The United States, prior to the act of congress of March 3, 1885 (23 U. S. Stat. at L., ch. 341),in matters jurisdictional of the person and property of the Indians, determined its relation to the tribes by treaty rights. This act was a departure from the treaty method of dealing with them in that particular, and was declaratory of the right of the United States to assume jurisdiction, and also of the right to adopt the laws, and confer jurisdiction upon the courts, of a territory of the United states as to certain crimes when committed by an Indian against the person or property of an Indian or other person upon a reservation. Section 9 of the act specifies the crimes over which this jurisdiction should extend, as murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny. The right of punishment for these crimes committed by an Indian against the person or property of another Indian or other person, without or within an Indian reservation and within the boundaries of a territory of the United States, was extended to the courts of the territory. The laws of the territory relating to the crimes specified were adopted as the laws by which to govern and control the Indian, and to punish him for the commission of any of the crimes mentioned. Section 9 of the act further provides that an Indian charged with any of the crimes specified, when committed within the limits of an Indian reservation situated within the boundary of a state, shall be tried in courts of the United States and be punished by the laws of the United States.
It will be noted that, while by this act, as to crimes specified, jurisdiction was extended to the territories in which the reservation was situated and the laws of the territory adopted for the government,and punishment of the offending Indians, no such rights were extended to the states or to the state courts. The effect of the act of March 3, 1885, was confined to acts of a criminal character, committed by an Indian, a member of some tribe, and committed within the-limits of a reservation. It did not interfere with the process of the state courts within the reservation, nor with the operation of the state laws upon the white people found therein. (United States v. Kagama, 118 U. S., 375, 6 Sup. Ct. 1109, 30 L. Ed. 228.)
Our attention has not been directed to, and we have been unable to find, any treaty with the Indian tribes whereby the government acquired or asserted jurisdiction of offenses inferior to those specifically mentioned in the act of March 3, 1885. We assume that it was left with the tribes to govern and to punish the offending Indian for all inferior offenses committed on the reservation by an Indian against the person or property of another Indian or other person, until by treaty or by act of congress the United States should assume this jurisdiction or delegate it to the states or territories in which the reservation was situated.
The act of congress of February 8, 1887 (24 U. S. Stat. at L., cli. 119), provided for the allotment of lands comprising Indian reservations to the Indians in severalty, and also for extending the protection of laws, civil and criminal, over the person and property of Indians. That part of the act necessary to be considered in passing on the question before us reads :
“ Sec. 5. That upon the approval of the allotments provided for in this act by the secretary of the interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and' benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or encumbrance whatsoever ; provided, that the president of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void ; provided, that the law of descent and partition in force in the state or territory where such lands are situated shall apply thereto after patents therefor have been executed and delivered except as herein otherwise provided ; and the laws of the state of Kansas regulating the descent and partition of real estate shall-, so far as practicable, apply to all lands in the Indian Territory which may be allotted in severalty under the provisions of this act. ...
“Sec. 6. That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territory in which they may reside ; and no territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. . . .”
It is apparent that by section 6 it was th¿ intention of congress to extend to the Indian, give him the benefit of, and make him subject to, the laws, both civil and criminal, of the state or territory in which he might reside upon the completion of the allotments and the patenting of the lands to the allottees. The only reservation of federal jurisdiction in the act of February 8, 1887, is the withholding from the Indian the absolute title of the allotted lands for a period of twenty-five years, or longer if the president of the United States, in the exercise of his discretion, extend the period. It is claimed by the petitioner that the act contemplates that even though the allotments have been completed, until the title has become ab solute in the allottee, he is not amenable to the laws, of the state. Upon the solution of this question, applied to the agreed facts, rests the decision of this case.
The exact question before us appears not to have been considered by the supreme court of the United States. In United States v. Rickert, 188 U. S. 432, 436, 23 Sup. Ct. 478, 47 L. Ed. 532, a case denying to the state of South Dakota the right to tax the lands of an Indian after allotment under the act of February 8, 1887, Mr. Justice Harlan, in delivering the opinion of the court, said :
“The word ‘patents,’ where it is first used in this section, was not happily chosen to express the thought which, it is clear, all parts of the section being considered,'congress intended to express. The ‘patents’ here referred to (although that word has various meanings) were, as the statute plainly imports, nothing more than instruments or memoranda in writing, designed, to show that for a period of twenty-five years the United States would hold the land allotted in trust for the sole' use and benefit of the allottee, or, in case of his death, of his heirs, and subsequently, at the expiration of that period, unless the time was extended by the president, convey the fee, discharged of the trust and free of all charge or encumbrance. In other words, the United States retained the legal title, giving the Indian allottee a paper or writing, improperly called a patent, showing that at a particular time in the future, unless it was extended by the president, he would be entitled to a regular patent conveying the fee. This intepretation of the statute is in harmony with the explicit declaration that any. conveyance of the land or any contract touching the same while the United States - held the title in' trust should be absolutely null and void. So that the United States retained its hold oh the land allotted for the period of twenty-five years after the allotment, and as much longer as the president, in his discretion, should determine.”
The language used and the reasoning employed’ in that case to show why the lands of the Indians should not be the subject of taxation during the period the same are held in trust by the United States was the basis of the decision in State v. Columbia George, 39 Ore. 127, 65 Pac. 604, in which the supreme court of Oregon held that the courts of that state had no jurisdiction to try an Indian allottee for the murder of another Indian, committed on the Umatilla reservation in that state. Petitioner cites these two cases in support of his contention that the courts of this state are without jurisdiction to try him for the offense charged. He also cites the case of State v. Campbell, 53 Minn. 354, 55 N. W. 553, 21 L. R. A. 169, which, although a late decision, is not based on the act of February 8, 1887, and the completion of allotments, but upon the act of March 3, 1885, and the fact that the tribal relations had been preserved and the offense committed within the limits ofan Indian reservation.
In Farrell v. United States, 110 Fed. 942, 49 C. C. A. 183, the circuit court of appeals, in an action involving the question of the authority of the United States to prohibit the sale of intoxicating liquors to any Indian to whom an allotment of land had been made under the act of February 8, 1887, recognized the act as conferring the full right of citizenship upon the Indian under the laws of the state or territory in which he may reside after complete allotment, though the title to the land be held in trust for the Indian by the United States, and though the tribal relation continue. In State v. Denoyer, 6 N. Dak. 586, 72 N. W. 1014, an action by Indian allottees, to whom preliminary patents had been issued under the act of February 8, 1887, to require the bo&rd of county commissioners to establish voting precincts in the territory from which allotments had been completed, the Indians were held to be citizens of the United States and qualified electors of the state, and voting precincts were required to be established, notwithstanding the United States held the title to the land and it was not taxable under the laws of the state. The act of congress of February 28, 1891 (26 U. S. Stat. at L., ch. 383) expressly provides for the leasing by the Indians of the lands allotted to them, with the approval of the secretary of the interior, and the act of May 27, 1902 (32 U. S. Stat. at L., ch. 888) likewise authorizes a sale of the. interests of adult heirs who have inherited the interest of their ancestors under the laws of the state, such sale to pass good title to the purchaser. The authorities and acts cited upon the proposition all go to support the view that it was not contemplated that the act of February 8, 1887, should be inoperative until' the title of the lands allotted should have become absolute in the allottee.
The withholding of absolute title from the allottee and the holding of it in trust for him by the United States were undoubtedly provided to preserve the land to the Indian as a permanent home, prevent its being taxed by the state and sold upon default in the payment .of such taxes, and to protect it against the business acumen and avarice of the white man. There' appears no good reason why the act should be otherwise inoperative during the period in which the title' to the lands is held in trust for the allottee by the government. The language used in section 6 of the act of February 8, 1887, that the “Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the -state or territory in. which they may reside,” carries with it the irresistible conclusion that it was the intention of congress to give to the Indian the benefit of the laws of the state, and to confer upon the state jurisdiction over the Indian allottee, immediately upon the completion of the allotments.
Congress, by authorizing the leasing and the sale of lands by the allottees with the approval of the secretary of the interior, encouraged white men to go ■among the Indians and upon their lands, not with the yiew of benefiting themselves, but with the view of giving to- the Indians better environments and developing their lands. We are not to presume that congress would encourage the white man to go with his family among and upon the lands of the Indians for the benefit of the latter and not protect him, his family, and his property, from the depredations and -lawlessness of the Indians, unrestrained other than by the laws of the tribe to which they belong.
It has been the policy of the United States not only to protect the Indians and preserve this once powerful race from extinction, but to confer upon them the benefits of civilization. From the savage state in which they existed, much progress toward civilization has already been made. Congress by the act of February 8, 1887, in allotting to the Indians in severalty the lands constituting the reservation, advanced another step toward civilization, giving them thereby . ownership in a specific tract of land as a home for each allottee and family, freed from the claim of ownership by other members of the tribe. Even if allotment of the lands in severalty failed to dissolve the tribal relations, it at least constituted a step in that direction. The allotment also constituted the allottee a citizen of the state or territory in which he may reside. It is not to be presumed that the rights of citizenship would be conferred upon the allottee for his benefit, and he be exempted for a period of twen.tyfive years from- the operation of the laws of the state of which he should become a citizen, and that he would be restrained, except from the commission of those crimes specifically mentioned in the act of March 3, 1885, only by a code of laws based upon the primitive ideas and standards of a tribal council. An Indian upon whom has been conferred citizenship, and who enjoys the protection of the laws of the state.; should be punished for a transgression of them, and this we are to presume that congress contemplated.
It being shown by the agreed facts that the petitioner was an allottee to whom a patent had been issued, and further shown that the allotments had been made and completed as provided by the act of February 8, 1887, the laws of the state were operative, and the state had jurisdiction to arrest, and punish th^ petitioner for the offense by him committed. The petitioner will be remanded'.
All the Justices concurring. | [
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Per Curiam:
W. H. Stebbins and others brought numerous actions against the Western Union Telegraph Company to recover statutory penalties for failure to receive and transmit telegraph messages at a rate prescribed by chapter 38 of the Laws of 1898. The telegraph company brought this proceeding to enjoin the prosecution of such suits, and the injunction was allowed. Stebbins and his associates bring this proceeding in error to reverse that ■order and judgment.
Since the proceeding was brought the statute under which the penalties were sought to be recovered has been declared inoperative and void. (Telegraph Co. v. Austin, 67 Kan. 208, 72 Pac. 850.) That decision settles the real controversy between these parties. No action can be maintained to recover the penalties, and that was the only purpose of the proceedings enjoined, The duty of the court is to determine real controversies and to give judgments that are effective. It is not warranted in considering and deciding hypothetic questions or abstract propositions, or in laying down rules of law which cannot affect the matter in controversy between the parties.
The proceeding will be dismissed. | [
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The opinion of the court was delivered by
Burch, J.:
William Charles Mitchell died intestate, in March-, 1898. At that time he was the owner of a tract of land in Osborne county, which was occupied by himself and his wife, Anna Mitchell, as a homestead. He was survived by an adult son, H. R. Mitchell, who, together with his wife, also occupied the homestead as a residence. Another adult son, Clay Mitchell, died before his father, leaving a widow, Fannie Mitchell, and four children, named, respectively, Charles, William, Mabel, and Ira, all of whom resided in another state. After the death of William Charles Mitchell his widow and his son, H. R. Mitchell, continued to occupy the homestead. In an action of partition brought by Charles Mitchell the children of Clay Mitchell claimed the share of their grandfather’s land which their father would have taken had he been alive. H. R. Mitchell contended that the land descended in equal shares to himself and his mother and resisted partition on that ground. Anna Mitchell took no part in the controversy, and no claim was made that the land was not subject to partition, if the heirs of Clay Mitchell had any title with which to support the action. The facts being agreed, the district court denied partition under a very liberal interpretation of section 2 of the law of descents and distributions (Gen. Stat. 1901, § 2504), which reads as follows :
“A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied by the intestate and his family, at the time of his death, as a residence, and continued to be so occupied by his widow and children, after his death, together with all the improvements on the same, shall be wholly exempt from distribution under any of the laws of this state, and from the payment of the debts of the. intestate, but shall be the absolute property of the said widow and children ; provided, however, that the provisions of this section shall not apply, to any encumbrance given by the consent of both husband and wife, nor to obligations for the purchase of said premises, nor to liens for the erection of improvements thereon.”
The judgment of the district court is directly opposed to the decision of this court in the case of Dayton v. Donart, 22 Kan. 256, which has been cited and approved many times, and which has always been regarded as containing a definite and final exposition of the law upon the question under consideration. It was there held that the title to a homestead does not descend to its occupants to the exclusion of heirs residing elsewhere, but that it descends in the same manner as the title to other real estate, subject only to the right of occupancy by the widow and the children who may reside there when the owner dies, until the widow remarry or such children all become of age. No good reason appears for disturbing this decision, and the children of Clay Mitchell are entitled to the share of the land which he would inherit if he were alive.
A motion to dismiss the. proceedings in this court because of a defective case-made must be denied, the record having been properly certified as a transcript, in due time.
The judgment of the district court is reversed, with directions to enter judgment upon the agreed facts in accordance with this opinion.
All the Justices concurring. | [
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Per Guriam:
This action was brought by plaintiff to recover possession of the land described in case No. 13,771, immediately preceding. Judgment was rendered for defendants. Her right to the possession of this land depended upon the same set of facts involved in that case. It follows that since the purchase of the land by the defendants was sustained in that case, and the possession sought to be recovered was taken by them under such purchase, the judgment of the court below must be sustained.
The judgment is affirmed. | [
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Per Curiam:
This was an action in replevin to recover the possession of a diamond, in which plaintiff recovered judgment, and defendant prosecutes this proceeding in error.
Plaintiff in error is a lawyer residing in Kansas City, Kan. He appeared in this court and argued his case. The facts relied on by him, summarily stated, are that during ■ the pendency of an action in the district court of Lyon • county, involving the forgery of a deed claimed to have oc- • curred in his office while he was practicing law in Em.poria, J. W. Blank, one of the parties to that action, and •the plaintiff in this action, called upon him to induce him • either to give false evidence on the trial in favor of J. W. Blank, or absent himself so that his deposition could not • be taken or service of subpoena could not be made; that he agreed, in consideration of $200, either to absent him-. ;self or to testify falsely. In pursuance of this agreement • J. W. Blank paid him ten dollars in cash and gave him the • diamond in question to secure the remainder. Smith’s •contention is that the plaintiff should not recover because he parted with the diamond for an illegal and immoral •purpose.
The iniquitous engagement into which Smith entered, ■according to his own statement, furnishes sufficient cause mot only to disbar him from the practice of law, but probably to subject him to fine and imprisonment,
We have not read the briefs nor examined the record. The statement of plaintiff in error convinces us that he is not entitled to anything at the hands of this court but the .severest censure and a dismissal of his proceeding.
, The proceeding is dismissed. | [
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Per Curiam:
This was an action by Lizzie E. Wooster to cancel certain contracts made by her with Crane & Company upon the ground that it was a foreign corporation and had not complied with the law relating to such corporations. When the act of 1898, commonly known as the-“Bush act,” became effective, Crane & Company took legal advice concerning its duties in the premises, and upon that advice filed its consent with the secretary of state, author izing service of summons on it, and thereafter made the annual statements required by law. Having been advised that this'was compliance, no other of the requirements of the act were observed by it. Later, and after this proceeding was brought, full compliance with the act was made by ■ the company.
The trial court rightly refused to cancel the contracts. Omissions such as were charged against the corporation do not operate to invalidate contracts or excuse nonperformance. This was determined, after full consideration, in The State v. Book Co., ante, page 1, 76 Pac. 411, and upon the authority of that case this one is affirmed. | [
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The opinion of the court was delivei’ed by
Smith, J. :
If there was sufficient evidence introduced by plaintiff below from which the jury might fairly infer that Mrs. Samuelson gave consent to the lease jointly with her husband, then the demurrer to the evidence was erroneously sustained. It is the contention of counsel for defendants in error that the witnesses Algot Johnson and Drivets, in repeating the conversations had with Mrs. Samuelson respecting the terms of the lease, testified that she reserved the house in which she lived with her husband, and that the lease having been executed and delivered by Samuelson without this reservation, her lack of consent appeared plainly. It must be remembered that there was testimony to the effect that on the day the lease was drawn Mrs. Samuelson, in the presence of plaintiff below and Algot Johnson, stated that the former might have the land for three-or five years from August 1, 1901. Immediately thereafter Mr. Samuelson, Algot Johnson and plaintiff went to Salina and had the lease drawn. Respecting the reservation of the dwelling-house, plaintiff below testified that Mrs. Samuelson said nothing about having bought' a house in town into which she and her husband would move. This was in contradiction of the testimony of Algot Johnson, which tended to show that Mrs. Samuelson reserved the farmhouse until they should move to Salina. It was for the jury to reconcile the testimony of the witnesses. They could give credit to any of them.
In the brief of counsel for defendants in error it is said that Mrs. Samuelson did not see the lease or know its terms for almost a year after its execution. This is not borne out by the record. In her testimony set out in the statement she admits receiving information from her husband on his return from Salina that he had leased the land for three years. He offered to let her see the lease, but she refused to look at it. This was on April 29, 1901. Without a word of protest or objection from Mrs. Samuelson, the tenant proceeded to plow and sow wheat on about ninety acres of the homestead quarter and seventy or eighty acres of the quarter adjoining. Most of the time be boarded with defendants in error, and when he left in the spring to fetch his family from Colorado he left his belongings in the custody of the Samuelsons. Such conduct on the part of the latter was at variance with their claim asserted afterward that the tenant had no possessory rights on the premises, and tended in some degree to show a previous consent to the terms of the lease as drawn.
It is contended, that because Mrs. Samuelson remained at home when her husband went to town five' miles distant and executed the lease, joint consent was impossible ; that their minds did not meet; that there was not a present consent at the exact moment-the instrument was signed and delivered, which, it is-insisted, is essential to an alienation or encumbrance-of the' homestead. We cannot give sanction to this-view. The constitution of this state requires joint consent to an alienation, not a joint act of alienation. If the wife in this case agreed to the conditions of the-lease substantially as they were afterward set down in the written instrument before its execution, and agreed that her husband should go to town and reduce-the contract with the tenant to writing, and the husband carried out the arrangement, and afterward, with knowledge of the lease and its duration, she-made no objection for nearly a year to the tenant’s-occupying and farming the land, such conduct was-sufficient to be submitted to a jury in support of the-claim of joint consent.
The case of Durand v. Higgins, 67 Kan. 110, 72 Pac. 567, is not at variance with what is said above. There the question was sharply presented by a finding of the court to the effect that the wife, prior to the-' signing of a deed, expressed herself as willing to join, in its execution, but did not because it was stated that-it was not necessary that she should do so, and after-its execution and delivery she expressed herself as being satisfied with it. It was held that there was no-joint consent for the reason that at the time of the execution of the deed, which was the only time the husband was shown to have consented, the wife did not. In the present case there was a continuous consent on the part of the husband, and we think the testimony- tended to show a continuous consent on the part of the wife from the time negotiations were begun to and including the time the lease was executed and delivered. Consent, of course, must precede alienation, but evidence of conduct of one of the parties whose consent is necessary, in recognition of the conveyance or lease, after the execution and delivery of the instrument, may be shown for the purpose of throwing light on the essential question of whether there was an anterior consent. (Sullivan v. Wichita, 64 Kan. 539, 68 Pac. 55.)
Again, when notices were served on Johnson to vacate the land in the spring of 1902, he asked Mrs. Samuelson the reason for such action. She answered that he had forfeited his contract; that he had not done proper work in harrowing, plowing, etc. No assertion was then made of lack of consent on her part, which was nearly a year after the execution of the lease. The assertion that the lease lacked consent of husband and wife seems to have been an afterthought. The tenant heard of no such claim while he was expending his time and labor in preparing the soil and planting a crop.
We think the case should have been submitted to the jury. The judgment of the court below will be reversed, and a new trial granted.
All the Justices concurring.
Burch, J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Porter, J.:
This is the ordinary action to recover a real-estate agent’s commission. The agent prevailed and the landowner appeals.
From the findings of the court and a memorandum opinion the case was this: H. D. Blakemore lived at Rock Island, 111., and owned land in Allen county, near Iola. He employed the plaintiff, a real-estate agent, to find a purchaser for the land at a certain price or an exchange at a higher price. It is not disputed that the efforts of plaintiff were the procuring cause of a written contract entered into between Blakemore and one Justus Hotte for a sale or exchange of the real estate on terms satisfactory to Blakemore. The written agreement provided that the property was to be conveyed to Hotte, in consideration of which he gave to Blakemore his three promissory notes aggregating $9,380 and due in one, two and three years with seven per cent interest, and agreed to secure the assignment and transfer to Blakemore of certain oik and gas leases on lands in Allen county. The defendant visited Manhattan, where the purchaser resided, and investigated his financial standing and responsibility, participated in drawing the contract of sale and was satisfied with the terms. His agent, the plaintiff, brought the parties together, but did not interfere with the making of the contract. In pursuance of the written agreement, Blakemore conveyed the land to the purchaser, and took a mortgage on the lands securing the three notes. The instruments were filed for record and the defendant returned to Iola and remained there about seven weeks and made efforts to procure from Hotte the transfer of the leases. These were never delivered as stipulated and some arrangement was afterwards made between Blakemore and Hotte by which the land was reconveyed to Blakemore. In one of the letters written to Blakemore by the plaintiff, the latter stated his understanding was that he was to get his five per cent commission from the cash payment, which was to-be not less than $5,000. The defendant’s contention is that the commission was to be paid only on condition that the deal was carried out by the purchaser to the extent of making certain cash payments for the land. The court held that from the evidence of both parties showing their oral transactions after the letter referred to was written, and because the defendant saw fit to enter into a con tract which did not require the payment of any cash, it was understood by both parties that the plaintiff was to wait a reasonable time for'the payment of his commission. The plaintiff testified that after Blakemore returned to Ida he was in plaintiff’s office every day; that on numerous occasions plaintiff asked him for his commission and Blakemore said he would pay as soon as he cashed one of the notes, and his only excuse for not paying was that he was trying still to cash some of them; that he never refused to pay the commission until the day he was leaving for Illinois. At that time plaintiff asked him about the settlement and Blakemore said, “I don’t think I owe you anything,” and according to the plaintiff, “passed right out of the door.” Plaintiff immediately filed suit.
There is no conflict in the evidence. The evidence justified the conclusion that by the action of Blakemore in entering into a contract which required no cash payment, and the subsequent conversations of the parties, both understood that plaintiff was to wait only a reasonable time for his commission.
For another reason there was sufficient evidence to sustain the judgment. Just before he left Allen county for Illinois, defendant denied that he owed plaintiff anything. Plaintiff had earned the commission and was thereupon entitled to sue for it at once.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover hydrant rental for the period, November, 1917, to September, 1918. The court denied the relief prayed for, and the plaintiff -appeals.
The action was based on a contract between the plaintiff and the defendant, whereby the plaintiff was authorized to maintain a system of waterworks in the city, and the defendant -agreed to pay hydrant rental. The contract contained a guaranty that the system would be capable of meeting specified efficiency requirements. The city was authorized to demand tests of ability to fulfill the requirements, and the contract contained the following provision:
“If for any reason the said grantee shall be unable to comply with the said requirements for a test, the liability of said city to pay the hydrant rental'provided in this ordinance shall be suspended until said grantee shall be able to comply with said requirements.”
At a test made pursuant to demand, the system failed to meet the requirements, and the defendant discontinued payment of hydrant rental. - The plaintiff contends the provision for suspension of liability merely postponed time of payment. The court is of opinion the intention was no rental should be recoverable for any period during which service was demonstrated by test to be inefficient. This interpretation gives the word' “suspended” an approved meaning (Webster’s New International Dictionary, 1920, title “suspend,” 7), and gives to the whole provision the only practical effect which could have prompted inserting it in the contract.
It is contended the test was not binding, because, contrary to a provision of the contract, water was taken from the system' for public and private consumption while the test was in progress. ' The defendant knew what the consumption of water during the test would likely be-; knew what the effect on the test would be; knew notice had not been given-to refrain from using water during the test; and with this knowledge voluntarily proceeded with the test as a demonstration of efficiency according to contract. Under these circumstances the plaintiff was bound by result of the test.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
Judgment was rendered in favor of the plaintiff on three indemnity contracts, and the defendant appeals.
The contracts were signed by the defendant with others, and each, in a definite proportion, agreed to indemnify the plaintiff against loss on account of an indebtedness evidenced by promissory notes given by the Topeka Baseball Association to the plaintiff. The first contract was dated August 5, 1912; the second, August 17, 1912; and the third, September 28, 1912. At the time these contracts were signed, among the notes of the Topeka Baseball Association held by the plaintiff was one for $1,500. Some time after September 28, 1912, and before January 28, 1915, the plaintiff indorsed the note without recourse to the Williamstown State Bank. The plaintiff reacquired the note July 16, 1917. On June 30, 1914, four of the indemnitors, other than S. J. Bear, signed a consent to an extension of the time of the payment of the notes held by the plaintiff to March 1, 1915.
1. The defendant contends that he was. a surety for the payment of the notes held by the plaintiff and that he was discharged by the extension of the notes. If S. J. Bear were a surety, his contention would be good; but his contracts were not those of surety. They were contracts to indemnify the bank against loss on account of the notes. The contracts were original undertakings on the part of Bear to protect the plaintiff against loss. Bear’s obligation is found in the contract signed by him, not in the notes. If the maker of the notes failed to pay them, they became the measure of the plaintiff’s loss and fixed the extent of the defendant’s liability. They served no other purpose under the indemnity contracts. Those contracts did not provide for the payment of the notes according to their terms. They provided for indemnity against loss on account of the failure of the maker to pay the notes. The extension of the time for the payment of the notes did not alter the terms of the indemnity contracts and did not change the liability of the defendant thereunder.
2. The defendant contends that the $1,500 note should not be considered in estimating the amount of the plaintiff’s loss. That note was a part of the indebtedness owing by the Topeka Baseball Association to the plaintiff at the time the indemnity contracts were made. That note was afterward transferred to the Williamstown State Bank and reacquired by the plaintiff. Why the plaintiff reacquired it from the Williamstown State Bank does not appear in the abstracts. Presumably the notes were negotiable. The contracts of indemnity were assignable. (McCrum v. Corby, 11 Kan. 464; Strong v. Moore, 75 Kan. 437, 439, 89 Pac. 895; Fletcher v. Piatt, 7 Blackford [Ind.] 522; Jenckes v. Rice, 119 Iowa, 451; Marshall v. Cobleigh, 18 N. H. 485; MacArthur Brothers Co. v. Kerr, 213 N. Y. 360.)
When the note was transferred to the Williamstown State Bank, a partial assignment of the contracts of indemnity was made, either actually or equitably. A difficulty might have arisen if that bank had -undertaken to enforce its proportionate share of the contracts, but that difficulty would not have been insurmountable and is of no concern at the present time. When the note was transferred back to the plaintiff, it acquired whatever rights in the contract had been assigned to the Williamstown State Bank. The $1,-500 note was included in the indemnity contracts in the first place, remained included in them while the Williamstown State Bank held the note, was included in them when the note was again transferred to the plaintiff, and is included in them at this time. The situation of the defendant has not been changed.
3. Another matter contended for by the defendant is that the indemnity contracts did not provide for any rate of interest, and that, therefore, the indemnitors are liable only for six per cent interest. This contention is not good, for the reason that the indemnity contracts are not contracts to pay the notes, but are contracts to indemnify against loss. The loss of the plaintiff would include the interest on the notes.
4. The defendant contends that others of the indemnitors have paid to the plaintiff the full amount of the loss sustained by it. The indemnity contracts were not joint contracts. They provided for the liability of each and for the full extent of that liability. The liability of one had no reference to the liability of any other. If one of the indemnitors paid more than his share, through mistake, he would have the right to recover the excess from the plaintiff; that excess cannot be retained by the plaintiff and applied on the obligation of any other indemnitor. An indemnitor cannot claim the benefit of any excess paid by any other indemnitor. No one of the indemnitors can recover from the others any amount that the first may have overpaid. The relation of the indemnitors to each other is the same as it would have been if each had signed a separate instrument. 13 C. J. 574 uses this language:
“Two or more persons may bind themselves severally for the same matter, so that the creditor is simply entitled to claim the performance against each of them separately. When a several obligation is entered into by two or more in one instrument, it is the same as though each had executed separate instruments, although they may all be for the same subject matter; and consequently each obligation furnishes a several cause of action. The effect of several obligations is that, although they concern the same subject matter, each obligor is liable only for his several promise, and -cannot be held for the others.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a conviction of failure to support his minor child. In 1915, he and the complaining witness were husband and wife, living at Pittsburg, when she was divorced from him and given the care, custody and.control of their minor child, an attorney’s fee of $400, and certain real estate was set apart to her and for her sole use, support, alimony and maintenance. Afterwards the decree was amended to show that the alimony allowed the plaintiff was for her permanent alimony and for the support and maintenance of the child. The wife testified that the prop-' erty thus allowed her was worth about $11,000. The defendant in the divorce action continued to live in Pittsburg, but the plaintiff lived elsewhere, at various places, and in January, 1921, located in Bourbon county where she was boarding with her child, a daughter about six years old, suffering from some sort of spinal difficulty with/ which she had been afflicted from birth. While living in Oklahoma, the mother brought an action against the husband for $1,500 for maintenance of the child, but testified that she did not know what had become of that suit. The information charged failure to support the child from January, 1921, she being in destitute and necessitous circumstances. The court charged, among other things, that the jury must be' satisfied beyond a reasonable doubt that the defendant did unlawfully, feloniously and willfully and without lawful excuse neglect and refuse to provide for the child then in destitute and necessitous circumstances, and that the word “necessitous” means needing the necessaries of life, and that his liability would not be changed by the fact, if it were a fact, that she was furnished the necessities of life by her mother or other persons. It was further charged that it was not material which of the parties was at fault in the divorce action, and that if they found that the property awarded had been exhausted and that the child was now destitute, the fact of having contributed such property would be no defense in this action. The defendant was convicted and sentenced to pay the complaining witness $100 on the 14th day of May, 1912, and each month thereafter for two years, and to execute a bond in the sum of $3,500 for the fulfillment of such order. The specifications of error are the denial of a motion for a new trial, refusal to instruct a verdict of not guilty, and giving and refusing certain other instructions.
The defendant’s chief contentions are that the venue was improperly laid and that the wife having been divorced on account of the fault and' aggression of the husband, and having been given thr custody of the child, and the husband having paid her $11,000 a' mony for the support of both, he cannot be prosecuted criminally under the desertion act, but could at most be subjected to a change in the decree of the court awarding the alimony.
Some complaint is made touching the alleged necessitous condition of the child and the help of other persons, but in these respects the court followed the decisions already made under the desertion act, and committed no error in respect thereto. The question of venue is well covered by the decisions and citations in The State v. Gillmore, 88 Kan. 835, 129 Pac. 1123; In re Fowles, 89 Kan. 430, 131 Pac. 598; and The State v. Wellman, 102 Kan. 503, 170 Pac. 1052, and reference thereto makes further discussion needless.
That the district court of Crawford county might on proper application and showing further amend its decree is true. (Walrath v. Walrath, 27. Kan. 395, 399, 400, Miles v. Miles, 65 Kan. 676, 70 Pac. 631; Rogers v. Rogers, 93 Kan. 114, 143 Pac. 410; In re Petitt, 84 Kan. 637, 114 Pac. 1071; Greenwood v. Greenwood, 85 Kan. 303, 116 Pac. 828; Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628; Purdy v. Ernst, 93 Kan. 157, 143 Pac. 429; Combs v. Combs, 99 Kan. 626, 628, 162 Pac. 273.)
Counsel, who naturally feels that an injustice has been done his client, cites Burritt v. Burritt, 29 Barb. (N. Y.) 124; Brown v. Smith, 19 R. I. 319; Hall v. Green, 87 Maine, 122, and Spencer v. Spencer, 97 Minn. 56, on the proposition that when the decree of divorce fixes the award for the support of the wife and children, the father is released from all liability for the support of the child unless by change of the decree. In the Burritt case the last paragraph of the syllabus is:
“To make the father thus liable in a case where a divorce has been decreed, and the care and custody of the child are awarded to the mother, and alimony is given to the wife, there must be special circumstances averred in the complaint, or appearing in the evidence, from which the obligation must arise, or may be reasonably inferred.”
In the Hall case it was said that—
“When a divorce is granted to a wife and as a consequence of it she has committed to her the care and custody of her minor child, it follows that the father becomes entirely absolved from the common-law obligation which previously rested upon him to support such child; and that the only obligation of the kind afterwards resting upon him consists in such terms and conditions in respect to alimony and allowances as the court may impose on him in the decree of divorce or in some subsequent decree in the same proceeding.” (p. 123.)
It was held, therefore, that a common-law action in assumpsit by the wife would not lie against the husband. To the same effect is Brown v. Smith, supra. In Spencer v. Spencer, the legal obligation of the father was held to be not impaired by a decree of divorce at the suit of the wife which gave her the custody of the children, but was silent as to their support, and it was held that—
“If under such circumstances he refuses or neglects to support them, she may recover from him in an original action a reasonable sum for necessaries furnished by her for their support after such decree.” (Syl.)
So it will readily be observed that in each of these instances a civil action by the wife was involved, not one by the state to which she^was not a party. True, it was held, as suggested by counsel, in Harris v. Harris, 5 Kan. 46, that an action by the wife, who had been awarded the custody of the three minor children, would not lie to recover against the former husband for the support of a fourth child born two days after the decree was rendered; that her only relief was to open up the decree. That was in 1869. In 1914, this decision was thus interpreted:
“It did not decide that a divorced wife to whom the custody of children has been awarded may not recover from her former husband for advancements made toward the maintenance of children subsequent to the divorce. On the other hand, the right of the mother and the obligation of the father were expressly recognized, the language being, 'do such full justice as the case requires, havirig reference to advancements already made.’ Neither was it decided that the remedy lay with the divorce court alone. . . . The court did not have in mind the case of a father who absconds from the jurisdiction of the divorce court and so precludes the burdened mother from resorting to it for relief. . . . But since the obligation does exist, and exists in favor of the mother, the law is not so impotent as to leave her remediless.” (Riggs v. Riggs, 91 Kan. 593, 597, 598, 138 Pac. 628.)
Still more pointedly may it be said that in none of the foregoing decisions did the court have in mind a criminal prosecution.
The desertion act proceeds upon the theory that the state may compel a father to support his minor child whenever in destitute or necessitous circumstances, either as a public duty lawfully imposed by law, or as a means to prevent the state or the public from having to assume the burden of such support. In The State v. Wellman, 102 Kan. 503, 170 Pac. 1052, Mr. Justice Mason, speaking for the court said:
“We. think that whether the defendant is answerable to the Kansas courts depends upon whether he owed this state a duty to support his children while they were with their mother. . Although he was divorced from her, they were still his children, and, except for special circumstances, he was under an obligation to support them.” (p. 511.)
One case has been found which holds in line with the defendant’s contention—State v. Coolidge, 72 Wash. 42, decided in 1913. The wife had procured a divorce and the custody of the minor child and the husband had been decreed to pay $20 a month for its maintenance, which he failed to do, and was prosecuted under the Washington desertion act, and adjudged to pay $2.50 a week and give a bond to secure his compliance with the judgment. The statute punishes “ 'every person who shall willfully and without lawful excuse desert, or willfully neglect or refuse to provide for the support and maintenance of his wife, or child under the age of sixteen years.’ ” (p. 46.) One peculiar feature of the case was that instead of asking for a change in the decree and that the husband be compelled to comply with it, the wife began a criminal action in the same court. In discussing this matter it was said:
“The trial judge evidently treated this case as a proceeding in aid of the divorce decree, for he had made an order which in effect modifies that decree, but without reference thereto. This it would seem he should not do, for defendant is now subject to two orders of the same court, one calling for the payment of a certain sum, and the other calling for a different sum. He is subject to a citation for contempt on the civil side, and to a judgment on the verdict and sentence on the criminal side.” (p. 45.)
It was decided that this was an unfair usage of the criminal statute and that “ 'such a practice is neither in the interest of the parties nor in the interest of society at large.’ ” (p. 45.), It was further observed that no case had been found holding that—
“When the duty of the father has been measured in money by a court of competent jurisdiction, with power to enforce its decrees, an independent action can be maintained against him, or that appellant may be coerced by .a criminal proceeding. . The remedy lies in the court of first jurisdiction, to which defendant is answerable, for by its order he has become primarily liable to the court rather than to his former spouse.” (p. 45.)
After quoting the statute already referred to it was said:
“It then provides a procedure and punishment, indicating that the legislature had in mind'only those cases where a husband deserts or refuses to provide for his wife or a child then in his custody and under his control; that it was not the intention of the legislature to cover by this law any case where the custody and control of the child had been taken away from the parent by the due processes of the law, or where the obligation of the husband to the wife or child had been defined and fixed with penalty by a court of competent jurisdiction.” (p. 46.)
But we have before us a much different situation from that presented to the Washington court, and under the facts presented here we are impelled to the conclusion that the state can maintain this prosecution. It may be that a criminal proceeding should not have been begun.and that the wife ought to have gone to Crawford county to procure a further change in the decree, but a condition had arisen regardless of the question who was to blame, in which a little invalid girl was found to be in destitute a,nd necessitous circumstances, and it would seem that the mother was unable to provide for her, supposedly having spent the proceeds of the property set aside therefor, and it must be assumed that the father refused to make further provisions. The question then arose whether the state should enforce its statute covering the desertion by fathers of their minor children or leave the wife subject to the possible outcome of a possible attempt by her to have the decree in the divorce case further changed. It would seem from what we know of the divorce case which was before us and the records therein, that the father is a business man able to make suitable provision for his child, and it would also seem so by the judgment rendered by the court below in this proceeding. If this is true, then it is apparent that he could have avoided prosecution by making suitable provision; and having neglected and refused to do so, we can find nothing in the statute or authorities cited to justify any sufficient reason for holding that the state as a party could not proceed against him as was done in this case.
Marriage is voluntary, a status usually sought by the suitor. To bring children into the world is a responsibility graver and more momentous than some persons realize. The rules of the' law and the dictates of present civilization demand that the father take care of his offspring. It seems strange that so natural and tender a duty should need to be enjoined and even enforced, and happily such need does not exist with reference to the great majority. But unfortunately there are those who become lost to,the promptings of parental love, to the direful necessity of a neglected wife, the pitiable distress of a helpless child; and are unmoved by instincts which usually preclude one from braving the opinion of an outraged neighborhood. It is on account of such degraded specimens of humanity that such laws are enacted, and already the records of this court have repeatedly witnessed the need for such legislation. Being enacted, the act, like all others, must of necessity coyer cases- of the most shameless disregard of conjugal or parental duty, as well as those which merely come within its provisions by reason of circumstances over which the. one charged may have but very partial control. In this unfortunate case Mr. Miller was required to pay the costs and the' wife’s attorney fee and place in her the title to $11,000 worth of property, a sum which to many would seem not only large, but ample for future needs, if well managed. The wife with the afflicted child seems to have tried divers locations, finally settling in a county adjoining that»of the defendant. Whatever'her financial skill or experience may have been, it seems that in a few short years after the divorce she found herself with a little afflicted daughter to care for, and no means with which to give her the attention she so much needed. What then? She might doubtless have' gone to Crawford- county and asked the court to further amend the decree in view of the changed circumstances and conditions, and that would indeed seem to have been the proper thing to do. But, instead, she appealed to the county attorney who on behalf of the state began this prosecution, and it must be presumed that he investigated and deemed that the proper course to 'pursue. So the court below had, and this court has for consideration, a case between the state as plaintiff and the former husband as defendant, which must be treated in accordance with the charge made and the facts shown, regardless of what different action might have been brought by the complaining witness. There is no complaint that the able trial court proceeded to judgment without sufficient evidence or that any error was committed save as included within the theories of the situation advanced by the defendant’s counsel. While the possibility of penalty is exceedingly severe, the court treated the matter sensibly, and instead of subjecting the defendant — a business man— to imprisonment, ordered him to pay a certain sum monthly for the support- of his invalid child.
syllabus by the court.
Criminal Law- — Neglect of Father to Support His Infant Child — Evidence— Erroneous Instruction — Interpretation of Statute. In a criminal prosecution of a divorced father under section 83 of the crimes act for neglect or refusal without lawful excuse to support his infant child which had been awarded to the custody of the divorced mother because of its tender age and not because of unfitness on the part of the divorced father to have its custody, it was error to instruct the jury as a matter of law that such failure.or neglect was without lawful excuse notwithstanding'the evidence that pursuant to the terms of the divorce decree the father had contributed $11,000 worth of property as alimony to the mother and for the support of the child, and after the mother had exhausted all this property the father offered to pay $25 per month toward its support, and offered to take the child and provide for its support and maintenance in his own'home, and offered to return with the mother to the court which awarded to her the custody of the child and submit to any further order made by that court touching such additional contribution as should be required of him .for the child’s support.
Whether the improvidence of the wife or the medical attention required for the child; or both, absorbed the allowance made by the court in arranging for the support of the wife and child, the flight of a few years witnessed a plight which needed and demanded relief. The method under review was adopted by the state and approved by the trial court.
We have carefully examined the record and are unable to find any error therein, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the assignee of the' Farmers & Growers Shipping Association to establish a liability against the officers and agents of the association for mismanagement, negligence and tortious acts by which the association suffered loss and its creditors were defeated in the collection of their claims. Plaintiff recovered damages, and defendants appeal.
The association was organized in 1914 with an authorized capital of $10,000, but only $3,125 of the capital was paid in, and on this amount the association began business. On account of losses sustained in handling grain the association became insolvent about April 1,1916, but its business was continued until an assignment was made on April 14, 1917. Plaintiff alleged that McMurphy and White, as president and secretary, and Forewalder, as manager, knew of the insolvency of the association in April, 1916, but that instead of winding up the business and settling with creditors as was their duty they continued the business, assuming obligations for grain deposited and sold, assuring those who dealt with them that the association was in good condition.
It is further alleged that in 1916 the association began dealing in futures and options, and that this was done by the manager with the consent of the president and secretary of the association. The general manager transacted most of the business and few meetings were held of either directors or stockholders. During the time that the gambling transactions were going on, it is alleged that the defendants gave out information to the effect that the association was solvent and in good financial condition. At the trial a large number of questions were submitted to the jury which was called to serve in an advisory capacity. The court also made separate findings of fact in addition to those returned by the jury. The court found that large losses were sustained through the negligent mismanagement as well as the gambling transactions of the defendants. It was found that the assets received by the assignee amounted to $10,478.89, while the indebtedness of the association was $13,215.50. One of the ‘claims was postponed because it was that of a director of the association which it was held should not be paid until all other bills were paid. Under a computation made of the assets and liabilities arising from the wrongs of the defendants, they were held liable to the extent of $714.41, which amount it was held should bear interest from the date of judgment. In his appeal the plaintiff makes two specifications of error. One is the refusal of the court to add interest to the amount for which the defendants were found liable from the date of the assignment instead of from date of judgment.
As to the interest, the controversy was between the association or the assignee of the association and its officers charged with mismanagement and misfeasance. The damages sustained by reason of their wrongs were unliquidated and could not be ascertained by any fixed standard of computation. The damages could only be determined by a long examination and accounting of the.many transactions involved and were not ascertained until the findings and judgment of the court were made and entered. The general rule is that interest is not recoverable on awards for unliquidated damages before judgment. (Evans v. Moseley, 84 Kan. 322, 114 Pac. 374; Lower v. Shorthill, 103 Kan. 904, 176 Pac. 647.) No error was committed in disallowing interest before the rendition of judgment.
The other specification of error is that in ascertaining the liability or amount of damages to be assessed against the defendants the costs of the assignment administration which had accrued and would accrue should have been made a charge against the defendants and their liability fixed by deducting the same from the assets of the association. The expenses of settling the insolvent estate is not a proper element of damages. While their wrongful action contributed-to losses sustained by the association, the administration of the trust involved demands, actions, fees and expenses other than the claims against defendants.
The liability against the defendants had accrued before the assignment was made. Steps for establishing it were taken in the assignment proceeding. Nothing in the statute providing for assignments authorizes the taxing of the expenses of administering the trust against those found to be indebted or liable to the insolvent assignor. While asserting a liability of the defendants for these expenses, plaintiff cites no authority, and in fact advances no argument in support of the claim. The costs and expenses of the assignment are somewhat akin to those incurred in ordinary litigation, and as to the latter, all know that there are many expenses attending litigation, such as loss of time and expense of the litigant attending court as well as his attorneys’ fees, which may not be taxed against the losing party. As to costs they even were not recoverable at common law, but of course each party was responsible for the costs he made. They are provided for by statute, and attorneys’ fees incident to a litigation are in a few instances authorized to be assessed, but unless such expenses are a matter of contract or there is express statutory authority for assessing them, they are not recoverable. (Swartzel, and others, v. Rogers, 3 Kan. 374; Stover v. Johnnycake, 9 Kan. 367.) In the case last cited it was said: “And probably such a judgment (for attorney fees) is never rendered in an action of tort” (p. 371), citing cases. (See, also, Evans v. Insurance Co., 87 Kan. 641, 125 Pac. 86.) It has been further held that the fees of a guardian ad litem in executing his trusts are not to be treated as costs in the case, and not chargeable against the unsuccessful party. [Black v. Black, 64 Kan. 689, 68 Pac. 662; Warner v. Warner, 83 Kan. 548, 112 Pac. 97.) Aside from the lack of statutory authority, the expenses' of the assignee in administering the trust are not the sole and direct results of the torts of the defendants. If the assignment had'been made in April, 1916, when the defendants first discovered that the indebtedness of the association exceeded its assets, it would hardly have been claimed that the defendants would have been liable to the association for existing losses or for the expenses of the assignment proceedings. They would not have been held responsible for losses resulting from slumps in the market price of grain which had been previously purchased in good faith nor for mistakes innocently made in carrying on the business. Transactions occurring in that period were involved in the assignment. The administration of the trust necessarily involved the discovery and collection of assets, the management and disposal of property held by the association, the adjustment of the claims of creditors, the enforcement of credits and demands against parties owing or liable to the insolvent association, including that against defendants, and also the closing of the estate and the distribution of the proceeds. Many duties devolved on the assignee and many expenses were incurred by him in the. administration of the trust which were outside of those pertaining to the claim against defendants. The legitimate expenses of administration are of course chargeable against the funds of the estate, but we think the court correctly held that they did not constitute a liability legally enforceable against the defendants.
In their cross appeal defendants insist that the finding of the court that McMurphy and White were guilty of negligence because of the wrongs of their manager, Forewalder, was not warranted, and that the conclusion of the court that they had such .knowledge of the gambling transactions carried on by the association as made them liable for losses resulting from those transactions was not supported by the evidence. They also insist that it was the duty of the assignee to have collected from the Kemper Grain Company for two cars of wheat shipped to that company and which was appropriated by it in payment of the gambling debts contracted by the manager, and which if collected would have amounted to about $3,000, and canceled liabilities to that extent. Apart from carrying on the business when the defendants knew the association was insolvent, and the giving of assurance to those depositing grain in the elevator that the association was in sound condition, it appears that the association engaged in gambling transactions which resulted in loss and contributed to insolvency. ■ The speculation in margins began in May, 1916, and while some profits were made through these transactions with the Kemper Grain Company, in the long run the association became indebted to that company on May 17, 1917, to the .amount of $7,021.19, and it was found that the greater part of this was due from commissions upon option contracts or speculating engagements upon the board of trade.
It is contended that there is no evidence that McMurphy and White had knowledge of the unlawful acts of the manager and therefore they should not be held liable for the losses resulting from the dealing in margins. These deals were carried on in the name of the association and were entered on the books of the association. The books were open to the inspection of the defendants and were brought before the officers at the meeting of the directors. The correspondence between the Kemper Grain Company, through whom the .gambling transactions were had, disclosed the dealings in futures. After losses had occurred Forewalder told McMurphy that he had a plan to make up losses. At one time a telegram relating to an option was handed to White for delivery to Forewalder. The evidence on the subject while somewhat meager is sufficient we think to justify the court’s finding that—
“While Forewalder was never expressly authorized to engage in gambling transactions on the board of trade in the name of the association, McMurphy as president and White, as secretary, knew that he was so engaged. Forewalder began his speculations in margins early in 1916 if not before and such circumstances and transactions were so frequent that notice thereof could not very well have escaped the attention of the president and secretary.”
The contention is that in the computation of losses defendants should not have been charged with the full amount of the same, but that credit should have been given for two cars of wheat which were shipped to the Kemper Grain Company without directions and which were applied by that company to the indebtedness of the association to that company, most of which arose in option transactions. It is said that these debts were illegal and that the assignee could, with proper diligence, have recovered the value of these two cars of wheat, $2,966.33, as that company did not become insolvent until July, 1918. Whether or not the assignee faithfully performed his trust in this respect or has collected all available credits cannot be adjudicated in this action. It appears that his action regarding this claim was taken upon the advice of counsel and in good faith. That company was made a party in this action, but it was insolvent and the corporation had been dissolved. It is true that defendants could not be held liable unless the association was damaged by the mismanagement and wrongs of the defendants. The court found the net assets of the association and set up against that amount the liabilities caused by the wrongs of the defendants, and for the difference between these amounts the defendants were adjudged to be liable. If the assignee has failed to perform his duties faithfully in the collection of claims or to account for assets that were available, he may be proceeded against upon his bond, but these matters are not open to consideration and determination in the present action.
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment enforcing a lien for attorneys’ fees claimed in an action commenced by the plaintiffs as attorneys for the administrator of the estate of Louis R. Holbrook, deceased, to recover damages for his wrongful death.
The plaintiffs are attorneys at law in Wyandotte county, duly admitted to practice law in this state. Earle R. Gilbert is also public administrator of Wyandotte county under chapter 199 of the Laws of 1903. Louis R. Holbrook, whose home was at West Plains, in Howell county, Missouri, was employed as'a brakeman on the Atchison, Topeka & Santa Fe Railway and was killed while in that employ at Edgerton in Johnson county, on November 6, 1919. At that time, he had a place of residence in Kansas City, Kan., at which he had some of his personal effects. Earle R. Gilbert learned of the death of Louis R. Holbrook and went to Edgerton on November 7, 1919, to investigate the latter’s death. In a letter dated November 7, 1919, plaintiff Lee Judy wrote to Sarah Holbrook, the mother of Louis R. Holbrook, at West Plains, Mo., and told her that Earle R. Gilbert was public administrator of Wyandotte county, and administrator of the estate of Louis R. Holbrook; that her son had been killed in a Santa Fe wreck; and that on the following day the plaintiffs would file a suit against the Santa Fe Railway for damages for the death of her son. On November 8, Earle R. Gilbert, on his application was, by the probate court of Wyandotte county, appointed administrator of the estate of Louis R. Holbrook, and on that day he contracted in writing with himself and Lee Judy, his partner, authorizing himself and Lee Judy to commence an action in the district court of Wyandotte county to recover damages for the death of Louis R. Holbrook, agreeing to pay to himself and Lee Judy fifty per cent of the amount recovered, and stipulating “that in the event that no sum shall be received from said defendants” no money should be paid to Earle R. Gilbert and Lee Judy for prosecuting the action. That action was commenced on November 8, 1919. On November 14, 1919, Sarah Holbrook went to the office of the plaintiffs where she signed a contract by which she authorized the plaintiffs to prosecute a claim for damages, agreed to pay them fifty per cent of the amount recovered, and stipulated that the plaintiffs should not receive compensation for their services in the event that nothing was received from the defendants. The mother testified that she did not want an action commenced, and did not know that she was signing a contract authorizing the plaintiffs to commence such an action. Subsequently, J. C. Holbrook, the father of Louis R. Holbrook, was appointed administrator of the estate of the latter in Howell county,- Missouri, where Louis R. Holbrook had personal property. After the appointment of J. C. Holbrook as administrator, he came to the Santa Fe offices in Topeka and there for $1,500 settled the claim of the estate of Louis R. Holbrook for damages on account of his wrongful death. That sum was paid to J. G. Holbrook, as administrator. That settlement, and the payment of the $1,500, was pleaded by the defendants in the action commenced by the plaintiffs in Wyandotte county, and that action was dismissed. The present action was then commenced to rehover $750 as attorneys’ fees under the contract between Earle R. Gilbert as administrator and himself and Lee Judy as attorneys, under the contract between the plaintiffs and Sarah Holbrook, and under a notice of attorneys’ lien that had been served on each of the defendants at the time the summons was served in the action for damages. A notice of attorneys’ lien was filed in that action at the time it was commenced.
In the present action, each of the defendants demurred to the petition of the plaintiffs, and each demurrer was overruled. At the close. of the introduction of the evidence by the plaintiffs, each of the defendants filed a demurrer to the evidence, and each of those demurrers was overruled. After the evidence had been introduced and the jury had been instructed and had deliberated for some time, the jury was recalled and instructed to return a verdict for the plaintiffs for $750. That was done, and judgment was rendered thereon.
The defendants contend that it was error to overrule the demurrers and to direct a verdict for the plaintiffs. Each part of the contention is good and compels a reversal of the judgment. The demurrers compel judgment in favor of the defendants.
1. A fundamental principle of law known by every lawyer is that an administrator of an estate cannot contract, for his personal advantage, concerning any matter connected with the estate. Such contracts are unenforceable. (1 Woerner’s American Law of Administration, 2d ed., *391; 2 C. J. 694; 13 C. J. 415; 25 C. J. 1120; Frazier v. Jeakins, 64 Kan. 615, 68 Pac. 24.) They constitute suffi cient grounds for the removal of an administrator on account of mis.conduct. (1 Woerner’s American Law of Administration, 2d ed., *575; 23 C. J. 1110.) Attorneys at law cannot be allowed to say that they are ignorant of this principle when they go into court and undertake to enforce the advantages undertaken to be given to them under such a contract. More than that, one who is public administrator in a county like Wyandotte ought to be fully conversant with this principle because of the many opportunities that are presented to him for its violation. Even if attorneys are ignorant of this principle of law, they should not be permitted to say. that they are, because every man with any sense of the distinctions between right and wrong knows that it is absolutely wrong for any person to take advantage of confidence reposed in him.
2. The contract with Sarah Holbrook is invalid for another reason. The plaintiffs commenced the action in Wyandotte county and themselves gave security for costs. So far as the parents of Louis R. Holbrook were concerned, the action was to be prosecuted without any liability for costs on their part. The contract with Sarah Holbrook was champertous, and therefore unenforceable. (A. T. & S. F. Rld. Co. v. Johnson, 29 Kan. 218.)
3. What has been said disposes of the judgment, but there is another matter that demands attention. The rule that this court has followed in writing its opinions is that counsel will not be unnecessarily criticised for conduct in the trial of cases in the district court, or in their presentation in this court, but that rule cannot be followed where lawyers become litigants and base their right to recover on transactions that show the grossest misconduct on their part. Paragraph 28 of the code of professional ethics, as adopted by the American Bar Association and by the Bar Association of the State of Kansas, reads as follows:
“It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so. Stirring up strife and litigation is not only unprofessional, but it is indictable at common law. It is disreputable to hunt up defects in title or other causes of action and inform thereof in order to be employed to bring suit, or to breed litigation by seeking out those with claims for personal injuries or those having any other grounds of action in order to secure them as clients, or to employ agents or runners for like purposes, or to pay or reward, directly or indirectly, those who bring or influence the bringing of such cases to his office, or to remunerate policemen, court or prison officials, physicians, hospital at tachés or others who may succeed, under the guise of giving disinterested friendly advice, in influencing the criminal, the sick and the injured, the ignorant or others, to seek his professional services. A duty to the public and to the profession devolves upon eveiy member of the bar, having knowledge of such practices upon the part of any practitioner, immediately to inform thereof, to the end that the offender may be disbarred.”
This rule is not statutory, but, in the matter of procuring business, - it expresses the reasonable ideals of the able lawyers of the state and of the nation. This court has so far approved the rule that it has been regularly and continuously published in the monthly docket since October, 1920.
The petition conclusively shows that both the plaintiffs grossly violated this rule, and the evidence shows the same thing. The public administrator of Wyandotte county, under the cloak of his official position, sought this litigation and, to forestall proper proceedings by the parties interested, had himself appointed administrator of the estate, and contracted with himself and his partner to prosecute this action for a contingent fee, and they immediately commenced the action. -A more flagrant violation of this rule of professional ethics can hardly be imagined. No excuse can be given for this kiñd of conduct by any person who is intelligent and learned enough to be admitted to the bar of the state of Kansas. This conduct shocks the sense of propriety in every honest man. The courts should not permit such conduct to pass without censure, and in no event, should a court enforce such a. contract. This court cannot pass this matter unnoticed.
The judgment is reversed, and the trial court is directed to enter judgment for the defendants. The attention of the state board of law examiners is directed to the record presented to this court in this case with the suggestion that the board give early and careful attention to that record and determine whether disbarment proceedings shall be commenced against Earle R. Gilbert and Lee Judy. The attention of the attorney-general is called to the impropriety of the conduct of Earle R. Gilbert as public administrator of Wyandotte county, and it is suggested that deliberate consideration ■ be given to the advisability of instituting proceedings to oust him from that office. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff brought this action to recover $8,-. 147.14, the balance due on account for goods sold and delivered to the defendant. The defendant set up four items of counterclaim— one for $4,500 with interest, one on a note of $1,260, one on a note Of $2,500, and one on an account for $68.90 for goods sold by the defendant to the plaintiff. The defendant alleged that the plaintiff for a valuable consideration agreed to pay the two notes. The plaintiff denied that allegation, pleaded the statute of frauds, and alleged that the contract, if 'there was one, was ultra vires. The answer to the counterclaim was verified. The plaintiff was allowed the full amount of its claim and interest. The defendant was allowed the item of $4,500 with interest and the item of $68.90 with interest but was denied the item on the note of $1,260 and the item on the note of $2,500. Judgment was rendered in favor of the plaintiff for the balance in the sum of $3,591.20. The defendant appeals. It complains of the refusal of the court to allow the two items of counterclaim.
The case was tried without a jury, and special findings of fact and conclusions of law were made; the first five findings of fact were as follows:
“1. The plaintiff furnished to the defendant the goods, wares and merchandise, as set forth in the statement of account attached to his petition and of the reasonable value as therein stated,' amounting to $8,147.14, the last item being of date August 13, 1919, same being a credit.
“2. The defendant furnished to the plaintiff the goods, wares and merchandise represented by the item of $68.90, as set up and claimed by the defendant in its cross-petition, the same being made up of two invoices, one of date June 30, 1919, and the other July 8, 1919, and it is admitted by the plaintiff that this item is correct and the defendant should have judgment therefor.
“3. In the spring of 1918, J. G. Robinson, being about to incorporate the defendant, the Mid-Co Packer Company, contracted with one Maurice Robinson, the Secretary and Manager of the Robinson Packer Company, the plaintiff herein, under the terms of which the Robinson Packer Company was to lend its credit to the Mid-Co Packer Company in order that the latter might purchase machinery for its plant. An initial payment of $4,500.00 was made by. J. C. Robinson, on behalf of the Mid-Co Packer Company which received the money by cashing a check made to its order by J. G. Robinson. This money was received by the plaintiff company and has never been in any way repaid to the defendant, the Mid-Co Packer Company.-
“4. In the reorganization scheme under and by which one O. K. Eysenbach and associates took over the stock of M. Robinson as indicated in the evidence, said Eysenbach and associates did assume and agree to pay certain indebtedness of M. Robinson, but this they did as individuals and not for and on behalf of the corporation, The Robinson Packer Company.
“5. The plaintiff, The Robinson Packer Company, a corporation, did not, in writing or otherwise, assume and agree to pay the two notes set up in defendant’s answer and cross-petition, one being for $1,260 in favor of the Pickering Lumber Company, and the other being for $2,500 in favor of the Kansas State Bank of El Dorado, Kansas.”
Other findings of fact were made, but they are immaterial now. The court made the following conclusions of law:
“1. There is due to the plaintiff from the defendant the sum of $8,147.14 with six per cent interest from August 13, 1919, $785.00, or a total of $8,932.14, and plaintiff is entitled to recover this amount from defendant.
“2. There is due from the plaintiff to the defendant the item of $68.90 claimed in its cross-petition with six per cent interest from July 8, 1919, $7.04, a total of $75.94, and the defendant is entitled to recover this amount from plaintiff.
“3. There is due from the plaintiff to the defendant the item of $4,500.00 as claimed by the defendant in its cross-petition with six per cent interest from April 20, 1918, $765.00, a total of $5,265.00, and defendant is entitled to recover this amount from the plaintiff.
“4. The plaintiff is entitled to have a judgment against the defendant in this action for $3,591.20 with six per cent interest from this date.”
The defendant in effect argues that the fourth and the fifth findings of fact were not supported by evidence. The burden was on the defendant to prove the facts necessary to establish the items of its counterclaim. If sufficient evidence was not introduced to establish them, the plaintiff was entitled to judgment on them. There was evidence which affirmatively tended to prove the fourth and the fifth findings, although there was evidence which tended to support the defendant’s contention concerning those facts. Under these circumstances, the rule that findings of fact will not be disturbed where they are supported by evidence must be applied on appeal.
The defendant argues that there was a consideration for the agreement by the plaintiff to pay the notes, that the agreement was not void on account of the statute of frauds, and that the agreement was not ultra vires as to the plaintiff. Before these questions-could be logically disposed of in this case, the fourth and the fifth findings of fact would have to be set aside, and contrary findings be made. Under the circumstances, it is not necessary to discuss this case further.
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The opinion of the court was delivered by
Johnston, C. J.:
This controversy involves the effect of a constitutional amendment relating to the individual liability of stockholders upon a statute fixing the liability of stockholders in banking corporations, which was in force when the amendment was adopted.
The appeal, which was taken from a judgment holding that the amendment operated as a repeal of the statute, has had unusual attention. On the first hearing, the court, one justice not sitting, was equally divided on the question. A reargument of the case was therefore directed, and that hearing in which all the justices participated, resulted in a decision affirming the judgment of the district court, holding that the statute was repealed by the amendment. (Bank v. Laughlin; 110 Kan. 559.) Following that hearing an application for a rehearing was granted, and the third hearing has led to a shift of opinion so that the majority of the court now hold that the amendment did not nullify or affect the statute imposing a double liability on stockholders in banking corporations. As noted in the former opinion, the original constitutional provision on the subject was:
“Dues from corporations shall be. secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law; but such individual liabilities shall not apply to railroad corporations, nor corporations for religious or charitable purposes.” (Gen. Stat. 1915, § 237, note.)
This provision was changed by an amendment adopted in 1906 which provided:
“Dues from corporations shall be secured by the individual liability of the stockholders to the amount of stock owned by each stockholder, and such other means as shall be provided by law; but such individual liability shall not apply to railroad corporations nor corporations for religious or charitable purposes.” (Const., Art. 12, §2.)
Before the adoption of the amendment statutes had been enacted for the enforcement of the double liability as against stockholders and corporations other than those specifically excepted in the constitutional- provision. These provisions remained in force with some minor amendments until 1903, when the legislature repealed the enforcement provisions, except as to stockholders of banking-corporations. The exception was made in these terms:
“Nothing in this act shall be construed so as in any manner to affect the liability of stockholders in any banking corporation, organized under the laws of this'state as now provided by law.” (Laws 1903, ch. 152.)
About five years before that time the legislature passed an elaborate act for the regulation of banks and in it is the provision, the existence of which is now challenged, that — ■
“The shareholders of every bank organized under this act shall be additionally liable for a sum equal to the par value of the stock owned and no more.” (Laws 1897, ch. 47, § 10.)
Later and in 1906 the constitutional amendment already quoted was adopted which in effect substituted a single for the double liability of stockholders.
On one side it is contended that the amendment applies to all corporations other than those organized for railroad, religious or charitable purposes; that it operates as a repeal of the statute in question and effectually abrogates the additional or double liability of stockholders in corporations, including those holding stock in banks; and because of the obvious conflict between the amendment abolishing the double liability and the statute in question, the latter is necessarily repealed.
On the other side it is contended that there is no repugnancy between the amendment and the statute, that the amendment prescribes the minimum of liability, but leaves the maximum or extent of liability that may be imposed to the legislature and that this is disclosed by the words in the amendment, “such other means as may be provided by law.” And it is further contended that the statute which provides “other means”; that is, the double liability of stockholders in banks, being in force when the amendment was adopted, continued in force and was as effective as if it had been reenacted after the adoption of the amendment. It is further insisted that the interpretation contended for is the practical construction which has been placed upon the amendment by the executive and legislative departments of the state and should be given consideration by the court.
• The majority view of the court is that the amendment did not effect a repeal of the statute and that the plaintiff is entitled to recover the amount claimed from .defendant. The theory is that there are no limits upon the legislative power except such as are prescribed in the state and federal constitutions, that under our system a constitutional provision is not a grant of power but is a limitation on the power the legislature may exercise and where there is no limitation, its power is absolute and plenary. The only limitations imposed upon that body by the constitutional amendment is that no individual liability shall be imposed on stockholders of railroad, religious and charitable corporations and that the liability of stockholders in other corporations shall not be less than the amount of stock owned by each of them. Under the amendment the legislature is admonished that the debts of the corporation must be secured by stockholders up to the prescribed minimum of liability and as no maximum of liability is prescribed the legislature under its general power is free to provide for such additional liability-as it deems to be wise. The constitutional provision is a measure for the protection of creditors, and under it creditors may look to the stockholders upon their individual liability to an amount equal to the stock held by each of them and to such further liability as the legislature in its discretion shall provide. The legislature could not under the constitutional mandate fix the protection of creditors at an amount less than the single liability, but under its general power could make it a double or treble liability or any reasonable amount in excess of the minimum fixed by the amendment. The legislature had provided for a double liability of stockholders in banks in harmony with the original constitutional limitation and as it is not inconsistent with the amendatory provision as construed, that apt continued in force without an express provision to that effect. It has been said that—
“The adoption of a constitutional amendment will not repeal a valid statute unless the repugnance between them be irreconcilable.” (Fischer v. Moore, 69 Kan. 191, 202, 76 Pac. 403. See, also, Leavenworth Co. v. The State, 5 Kan. 688, 693; Prohibitory-Amendment Cases, 24 Kan. 700, 722.)
Under the construction placed upon the amendment there is nothing approaching repugnancy between it and the statute. Reference has been made to Bicknell v. Altman, 81 Kan. 436, 105 Pac. 694, and Douglass v. Loftus, 85 Kan. 720, 119 Pac. 74, as being opposed to the construction now given the amendment. It is the view of the court that neither of these cases can be regarded as an authority against the construction adopted as the corporations dealt with in those cases were not banks, and the statute involved here was not under consideration. It may be said further that the language employed in those cases is to be interpreted in the light of the questions the court had under consideration. They are no more controlling as to the effect of the amendment on an existing and valid statute than Faulkner v. Bank, 77 Kan. 385, 94 Pac. 153, and Bank v. Strachan, 89 Kan. 577, 132 Pac. 200, in both of which language was used' that was open to the interpretation that the double liability of stockholders was still in existence. So far as the practical construction of the amendment is concerned, it is held that the court may call to its aid not only the history of the times when it was adopted, but also the contemporaneous construction placed upon it for a considerable period by those charged with its application and execution. So attention is called to the fact that the legislature had framed and submitted the amendment in 1905 and that in 1909 it passed an act which provided for the collection of double liability from stockholders in banking corporations. (Laws 1909, ch. 59, § 7, Gen. Stat. 1915, § 573.) There was a like reference when the bank guaranty law was enacted, for in it was a provision requiring the officer in charge of an insolvent bank to exhaust the double liability of its stockholders. (Laws 1909, ch. 61, § 4, as amended by Laws 1911, ch. 62, § 1, Gen. Stat. 1915, § 598.) It was said in argument that the banking department since 1906 when the amendment was adopted had interpreted it and the statute as justifying and requiring the enforcement of a double liability against stockholders of insolvent banks, and that this interpretation had been acquiesced in by banks and the stockholders of banks during the period napied. The constitutional amendment is of course to be construed in the sense in which it was understood by those who adopted it and cannot be given a meaning contrary to the import of the language used. However, where there is obscurity or ambiguity in the provision, resort may be had to the aids mentioned to ascertain the purpose and meaning of those who framed and adopted the amendment. Of themselves they are of little weight, none at all unless the construction is a doubtful one, but such light as they throw on the purpose of the authors of the amendment is corroborative of the construction placed upon it. It follows that the former decision is set aside and that the judgment of the district court is reversed with the direction to enter judgment against the defendant. | [
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The opinion of the court was delivered by
Mason, J.;
This case involves a controversy as to the right to an eighty-acre farm formerly owned by Helen Smith, the widow of Daniel Smith, who died in 1912, the claimants being George A. Smith and C. I. McHenry. The claim of the plaintiff, George A. Smith, is based upon two oral contracts with his foster parents, Daniel and Helen Smith, to the effect that when the survivor of them died he was to have all the property left, in consideration for certain services. The claim of McHenry, a defendant, is based upon a written contract entitling him (as he contends) to the tract referred to upon the death of Helen Smith, in consideration of his caring for her from the time it was entered into, and in discharge of an existing indebtedness of $1,500. The court allowed McHenry a lien for the $1,500, but otherwise the plaintiff recovered judgment. McHenry, who will be referred to as the defendant, appeals.
The trial court found specifically that the contracts under which the plaintiff claimed had been entered into, and that he had performed both on his part; that the written contract relied upon by the defendant had been procured by fraud and undue influence and that he had not performed the obligations he had assumed under it. The defendant asserts that while there was evidence to the effect that Daniel and Helen Smith had promised the plaintiff that he should be adopted and treated as their heir there was none tending to show any ’agreement that would prevent them from disposing of all their property elsewhere by will. We shall assume that-upon this proposition the evidence supports the finding and that the plaintiff in addition to having the rights of an heir was entitled to any property left by Mrs. Smith, who survived her husband, which was within her power to dispose of by will. Upon that assumption the case must be determined according to the effect given to the written contract relied upon by the defendant.
1. The defendant’s mother, while not related to the Smiths, had been reared in their home and the defendant lived there from boyhood until he was married. Mrs. Smith lived with him during the last years of her life upon the farm now in dispute. She appears to have been about sixty-eight years old at the time the contract was executed, and died some five years later. The plaintiff contends that by reason of the fiduciary relation which the defendant sustained toward Mrs. Smith her assent to the written contract must be presumed to have been obtained by undue influence, and that in order to derive a benefit therefrom the defendant was required to prove the contrary. The defendant maintains that the rule invoked does not apply here, the contract being based upon a valuable consideration and the relation of the parties not being such as to give rise to that presumption. The rule is often stated as though applying only or especially to voluntary conveyances or gifts inter vivos. (Smith v. Smith, 84 Kan. 242, 114 Pac. 245, and note in 35 L. R. A., n. s., 950; 12 R. C. L. 953, note 6; 14 A. & E. Encycl. of L. 1011.) A deed or contract based upon a valuable consideration may, however, under some circumstances be set aside because of the relations of the parties where no further showing of fraud or undue influence has been made, and no proof of fair dealing has been supplied. (6 R. C. L. 637; Note, 21 A. S. R. 103. See, also, 18 C. J. 422, note 95.) “While equity does not deny the possibility of valid transactions between the two parties, yet because every fiduciary relation implies a condition of superiority held by one of the parties over the other, in every transaction between them by which the superior party obtains a possible benefit, equity raises a presumption against its validity, and casts upon that party the burden of proving affirmatively its compliance with equitable requisites, and of thereby overcoming the presumption.” (2 Pomeroy’s Equity Jurisprudence, 4th ed., § 956.)
The lawyer by whom the contract in question was prepared and in whose office it was executed testified that Mrs. Smith came to see him accompanied by two friends who signed it as witnesses; that he had had no previous conversation about the matter with the defendant; that the data were furnished him and the instrument was drawn before the defendant arrived; and that there was nothing to indicate that the agreement was not her free and voluntary act. While the trial court was not bound to accept the testimony of any witness there is nothing whatever in the record to suggest that full credence was not given to this version of what took place at the time of the preparation and signing of the instrument, or that there is any doubt of its correctness. The testimony of the two witnesses referred to was to the effect that they were fellow church members of Mrs. Smith; that they came with her at her request, she stating in a general way the purpose of the visit; and that there were no indications of any duress exercised upon her. Without attempting to lay down any general rule by which more or less similar cases may be solved we hold that whatever tendency the relation of the parties may have had to cast suspicion upon the good faith of the transaction, and to call for evidence of voluntary consent on the part of Mrs. Smith, was fully met by this uncontradicted evidence of what actually took place when the contract was signed, and that if it is to be held invalid it must be by reason of other evidence tending to show the exercise of undue influence or fraud.
No such evidence was produced unless it is to be found in testimony that may be thus summarized: Mrs. Smith often said that the defendant wanted a deed to the farm; that he was always “shouldering around after her for it”; that he was deviling her all the time about the place and she couldn’t stand it down there; but she would not let him or any one else have a deed to it until she was through with it, and had refused to make a deed; that she had fixed everything the best she knew how — the best way she knew without deeding it, but he did not seem satisfied — that he would have to be satisfied with what she had done. (It does not appear whether these statements were made before or after the execution of the contract; a part of the language seems to indicate the latter.) She said that the home was unpleasant, there was so much profane language; that at one time when she had started to go to a neighbor’s the defendant took her back and sat her down in a chair not very easy and told her she couldn’t go. She would sometimes visit at the home of friends and pay her board. One Christmas the de fendant had been tantalizing her about his contract with her and she went to her room; he followed her in and told her if she wanted to lie down to come out on the couch so she would not catch cold; he took her by the arm and brought her out and threw her on the couch not very easy. One witness characterized her as “old, not very strong, and feeble and childish.” Another said she seemed to be a woman that had a will of her own with respect to making the deed, but otherwise she was not. She executed the contract in question and also the will hereafter referred to by making her mark. Many checks drawn by Mrs. Smith were witnessed by the defendant. Presumably a short time after the contract was executed a neighbor who had noticed the defendant’s riding around two or three times said to him that he had been riding around a good deal. He answered, “Yes, I am through now.” He was asked if he had his business fixed up now and said, “Yes, I got it fixed, and fixed the way I want it, too.”
The court does not regard this evidence, or other evidence of the same general character, as having any substantial tendency to show the exercise of undue influence upon Mrs. Smith, or the perpetration of any fraud upon her. A presumption of undue influence arises more readily with respect to the execution of a deed or contract than of a will. (Ginter v. Ginter, 79 Kan. 721, 744, 101 Pac. 634, 643.) But in either case in order for the evidence to be sufficient to warrant setting aside the instrument upon that ground it must show that a real consent was lacking. “The undue influence for which a will or deed will be annulled must be such as, that the party making it has no free will, but stands in vinculis.” (Conley v. Nailor, 118 U. S. 127, 134.) “In order to render a deed void it must operate to deprive the grantor of his free agency, by substituting for his will that of another. It does not, therefore, consist in mere gratitude for kindness, affection, or esteem, where a conveyance is induced, . . . nor in a mere desire by the conveyance to gratify the wishes of another, if the free agency of the grantor is not impaired, nor even in suggestions, entreaties, and importunities, short of ex-actions overpowering the grantor’s volition.” (8 R. C. L. 1032.)
2. The plaintiff contends that the contract was not effective as a deed because it was testamentary in its nature, and was not effective as a will because it was not probated. It contained an agreement on the part of Mrs. Smith “to give, and to convey, either by last will and testament, or in lieu thereof, this instrument to operate in all respects as a good and sufficient conveyance of the following described real estate;” and this agreement among others on the part of the defendant: “upon the death of the said party of the first part, the foregoing conditions having been carried out and the title to said lands vesting in him by virtue hereof to pay, or cause to be paid, within three months from such time, the sum of $100 in cash to G. A. Smith.” It was at all events a valid contract that in consideration of the $1,500 for which she was already indebted to the defendant and of his caring for her and furnishing her a home during the rest of her life, and of other agreements on his part, he was to have the farm at her death. If it had been a will it would at the same time have been a contract, and while revokable in its aspect as a will would notwithstanding such a revocation have been enforceable as a contract. (Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 147.) The prior contract with the plaintiff interposed no obstacle. That provided that whatever property was left undisposed of at the death of Mrs. Smith should go to the plaintiff. It did not prevent her disposing of the farm during her lifetime. She could sell it or mortgage it or perhaps even give it away. At all events she could contract with reference to it. She could use it as she did as a means for providing for her future support. Whether the instrument was itself sufficient to pass a legal title to the defendant at once or at the time of Mrs. Smith’s death is not now important. It was at least as effective as the familiar type of oral contracts which are often enforced, where a promise made that in return for services the person performing them shall receive certain property at the death of the owner. Moreover, about two years before this contract was entered into Mrs. Smith had executed a will which was duly probated, leaving $100 to the plaintiff and giving the rest of her property to the defendant. No reason is apparent why the contract may not be interpreted as one to give the plaintiff the farm by will, effectuated on the part of Mrs. Smith by allowing the will she had already made, which gave him that with her other property, to remain unchanged. The plaintiff suggests that the will referred to was revoked by the later instrument, which was in itself a will. If it should be regarded as a will, not being inconsistent with that already executed, it could not affect its revocation. (40 Cyc. 1173.)
3. The court found that the defendant had failed to perform the contract on his part in that he did not, as his agreement required, furnish Mrs. Smith with a suitable home or provide her one elsewhere, or make semiannual payments to her, or pay the expenses of her last sickness and funeral, or erect a monument over her grave. The defendant argues that so far as concerns her support, which would include the payment of money for her necessary expenses, the objection is one that could only be raised by Mrs. Smith herself. Where a deed has been executed in consideration of the grantee undertaking to support the grantor for life there are cases holding that the grantee’s failure to perform his agreement can be taken advantage of only by the grantor. (18 C. J. 170, note 68; 18 C. J. 364, note 15 [b]; Roche v. Roche, 286 Ill. 336.) The reasons given for the rule may not apply where the instrument executed is not a deed but a contract to make a will, no question there arising as to a forfeiture, or of divesting title by reason of the nonperformance of a condition subsequent. There was evidence that Mrs. Smith complained somewhat of the treatment she received, expressed dissatisfaction with it, and at times stayed with friends, paying board. It does not appear, however, that she was refused money or that she abandoned her home with the defendant. On the contrary she seems to have remained with him until her death. Inasmuch as she refrained from revoking or changing the will she had already made in his favor we think she must be regarded as having shown herself sufficiently satisfied with the existing conditions to accept such performance as he offered and treat the contract as still in force. Of the defendant’s omission to pay the expenses of Mrs. Smith’s last illness and funeral and to erect a monument these explanations are offered in his brief: Such expenses were paid in due course of the administration of her estate, he supposing that inasmuch as he was her residuary legatee it came to the same thing as payment by him; and Mrs. Smith before her death caused a monument to be erected. Neither statement of fact is challenged in the brief of the plaintiff, and we deem the excuses sufficient.
The judgment is reversed and the cause is remanded with directions to render judgment in favor of the defendant quieting his title to the land as against the plaintiff.
SYLLABUS BY THE COURT.
Contract — Conveyance of Land — Consideration Maintenance of Grantor During Dife — Contract Valid. The fact that one has made a binding contract to leave to another all the property remaining to him at his death does not prevent his making a later valid contract that a tract of land then owned by him shall upon his death go to a different person in consideration of his caring for him during the rest of his life. The first contract has relation to the property which up to the time of his death remains subject to his disposal and the use in good faith of a particular piece of property, although comprising practically his entire estate, to secure his maintenance during his life, withdraws it from that category. Even if a will is made devising the tract in pursuance of the second contract the person named as devisee acquires his rights with respect thereto through the contract, the devise serving merely to transfer the formal legal title in accordance with the agreement.
(Filed July 8, 1922.) | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment for damages alleged to have been caused by his cattle destroying the plaintiffs’ cane.
The petition alleged that in December, 1918, defendant allowed his cattle to escape unlawfully and trespass on the plaintiffs’ land and destroy twenty tons of cane, to the plaintiffs’ damage of $600. The answer was a general denial.
Claude Miller testified that on December 3 he found five or six steers in the plaintiffs’ field. There were 135 shocks of cane; he saw the field the next month and there was nothing left except two or three little piles that stuck up through the snow; the fence separating the plaintiffs’ field from the defendant’s pasture was made of two wires on stone posts; about the 17th of December he drove out forty-five head of cattle the first time -he saw them in the field, and there were close to a hundred the next time.
The case was tried by the court and taken under advisement, and findings of fact were made to the effect that the defendant’s cattle destroyed a large part of the plaintiffs’ crop of cane of twenty acres which produced about fourteen tons, worth $30 a ton, the total value of the cane destroyed being $330; that the defendant’s fences were not sufficient to restrain the cattle, and that the herd law was in effect; that they were running at large within the meaning thereof.
The defendant complains of the finding that the fence was insufficient. He. asserts that the feed was not worth the amount named and for which judgment was entered.
Claude Miller testified that the forty-acre field was enclosed with three sides of fence, but one side was poor.
“That fence did not belong to me, it belongs to the range Mr. Parvin was using. I presume they had not fenced that yet. It was two wires on stone posts. That was on the north side of our field, separating the field from Parvin’s pasture.”
The defendant testified, among other things:
“Immediately south of my pasture and north of Miller’s field there was hay land and the east side was field. That was not used as pasture land. Between that and Miller’s field I think there were two wires on stone posts. It was forty or fifty feet between most of them. ... I saw his field the day he came over to see me. We tried to keep my cattle in the pasture. The cattle were kept in the pasture with four and three wire fences all the month of December, and were not turned out of the pasture. A three-wire fence is a reasonably good fence to (re)strain cattle. I have three wires every place in the pasture, except where there are, four wires. The cattle broke the fence down and got out.”
Howard Norman testified that the fence was not sufficient to restrain that kind of cattle, “because it was not kept up. There was not sufficient wire on the posts.” He said these cattle gave considerable trouble on the ranch the whole season. “They were real breachy.”
The case seems to have been tried on the fence and herd-law theory, as indicated by the evidence and also by the findings of the court. Railway Co. v. Olden, 72 Kan. 110, 83 Pac. 25, involved damages for the loss of live stock which had gone from a pasture field upon the right of way, where they were killed by a passing train. The pasture was not enclosed with a statutory legal fence. It was contended that in a herd-law county if the stock escape from an enclosure without the owner’s fault he cannot recover against the company for killing them unless the enclosure was protected by a legal fence.- The court said the effect of the fence law was to modify the common law so the owner wás not liable for injuries committed by trespassing stock except to those whose lands were enclosed with a legal fence.
“The adoption of the herd law is the readoption of the common law in this respect, and the owner of cattle is liable for injuries committed by them in a herd-law county, regardless of the fence law. ... If the stock killed be the ordinary farm stock, and the owner have the pasture enclosed with an ordinary fence, such as is generally required to restrain that kind of stock, and they escape without his fault, he is not guilty of negligence and is not guilty of permitting the stock to run at large, and he may recover regardless of the fence law.” (pp. 112, 113.)
That is, he could recover against the railroad company. In McAfee v. Walker, 82 Kan. 182, 107 Pac. 637, the controversy was between the occupants of adjoining land regarding a partition fence which had been maintained between them. It was said:
“The common law places the responsibility wholly upon the ■ owner of animals to keep them from his neighbor’s premises, and makes him liable for any injury resulting from his failure to do so. The fencing act . . . changes the rule and requires .the neighbor to protect himself from such injury up to a certain point by erecting a fence of a fixed power of resistance. The adoption of the herd law in turn eliminates the intervening statute and restores the common law, by canceling that requirement. The liability of the owner to prevent his animals from straying upon his neighbor’s premises was the same at common law as under the herd law. He was under a positive duty to keep them up.” (pp. 185, 186.)
The case of Hazelwood v. Mendenhall, 97 Kan. 635, 97 Pac. 636, involved the question of damages committed by animals permitted to run at large and injure crops upon unenclosed land that without the fault of the owner had escaped from a pasture surrounded by a fence strong enough to show the exercise of reasonable diligence for their restraint. It was held that the herd law did not apply. An instruction had been asked, the action being brought under the herd law, that no recovery could be had for injuries done on unenclosed land by animals escaping without the fault of their owner from a pasture enclosed by a legal fence. This was refused, and the court charged that the plaintiff might recover even if the cattle had escaped from an enclosure surrounded by a legal fence and injured crops upon the plaintiff’s unenclosed land before they could be apprehended. It was held that the requested instruction should have been given, citing the Olden and Walker cases. It was said:
“The requirement that the crops shall be protected by a legal fence is canceled by the herd law only so far as relates to animals that are ‘running at large.’ Any that without fault of their owner have escaped from an enclosure surrounded by a barrier reasonably adapted to their restraint are not regarded as within that term, and the definition of a legal fence has reference to that which protects crops, and not to that which restrains cattle within an enclosure.” (p. 637.)
The expression in the Olden case was reiterated that the fence law does not furnish a rule by which to determine whether the owner of the stock in herd-law counties is guilty of negligence in enclosing them.
Ruling Case Law states:
“At common law, a land-owner was not bound to maintain fences between himself and his neighbor except by prescription or agreement, nor could he, without such agreement or prescription, be held to contribute to the expense of fences erected by his neighbors. As has been already stated, however, each owner at his peril was bound to keep his cattle on his own lands, whether the lands of his neighbor were fenced or unfenced.” (11 R. C. L. 880.)
“At common law the proprietor or tenant of land is not obliged to fence it, but every man is bound at his peril to keep his cattle on his own premises. This he may do in any manner he chooses, but in. the event of their escape, he is held liable for their trespasses on the land of others, whether fenced or unfenced, no man being required to fence against the cattle of others, in the absence of an agreement, prescription, or statute to the contrary.” (11 R, C. L. 873.)
The law seems to be settled that in a herd-law county one who pastures cattle upon his own. land must at his peril keep them from trespassing upon the crops of adjoining landowners, regardless of the character of the fence separating the two tracts.
The same result having been reached by the trial court, and the evidence fairly showing the trespass and damage found by the court, the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of the offense of having intoxicating liquor in his possession, and appeals.
The county attorney held an inquisition, at which testimony relating to commission of the offense was taken. The information was filed in the district court, was verified on information and belief only, and the testimony was not filed with the pleading. When arrested the defendant filed a motion to quash the warrant, and then gave bond for appearance. The defendant argues he should be discharged because the warrant was improvidently issued. In order to furnish proper foundation for the warrant, the information should have been verified positively, or the testimony taken at the inquisition should have been filed with the information. However, when the defendant gave bond he was no longer held by virtue of the warrant. The warrant had no further function, and the motion to quash was no longer of consequence.
The bond was given voluntarily, the information was good as an information, and it was optional with the county attorney whether he would file with the information the testimony taken at the inquisition.
The statute under which the defendant was convicted reads as follows:
.‘Tt shall be unlawful for any person to keep or have in his possession, for personal use or otherwise, any intoxicating liquors, or permit another to have or keep or use intoxicating liquors on any premises owned or controlled by him or to give away or furnish intoxicating liquors to another, except druggists or registered pharmacists as hereinafter provided.” (Laws 1917, ch. 215, § 1.)
The facts, and the court’s view of the law, on which the conviction rests, were stated in the following instruction to the jury:
“6. You are instructed that if a person is handed intoxicating liquor, and it is understood at the time between the person who hands the same over and the receiver thereof, that the receiver may drink as much of the same as he desires, after which the remaining portion, if any is left, is to be returned to the person having it in his custody in the first instance, then the person so receiving it, under the facts and conditions heretofore stated, would have it in his possession during said time.”
It will be observed the statute does not punish personal use of intoxicating liquor. Keeping or having in possession for personal use is made a crime, and permitting another to use, under stated circumstances, is made a crime; but drinking intoxicating liquor is not unlawful, by virtue of this statute, or indeed of any other statute, except that relating to public drinking on street and interurban cars and passenger trains. In order to aid in the enforcement of the liquor law, the purchaser of intoxicating liquor was not made a guilty participant in the sale (The State v. Cullins, 53 Kan. 100, 36 Pac. 56), and probably for the same reason the person who drinks intoxicating liquor kept by another is exempted from punishment.
The subject of what constitutes corporeal possession was discussed in the opinion in the case of The State v. Metz, 107 Kan. 593, 595, 193 Pac. 177. In this instance, possession may. not be attributed to the defendant, because an essential element of possession is lacking. The person having custody simply handed the liquor to the defendant, to take a drink. The liquor was accepted for that purpose only. The quantity appropriated, if any, was consumed by the act of appropriation, and the remainder, if any, was not held under any continuing claim to exclusive use.
The judgment of the district' court is reversed, and the cause is remanded with direction to discharge the defendant. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by a motorman against an interurban railway company for injuries sustained because of an alleged defective brake equipment on the defendant’s car operated by plaintiff. The action was brought under the federal safety-appliance act and under the federal employer’s liability act; and it is defendant’s contention that the defendant was not engaged in interstate commerce, and consequently that neither of these acts had anything to do with the rights, and liabilities of the litigants in the matter in controversy.
The defendant is a Kansas corporation having a line of electrically operated railway from Fort Leavenworth, Kan., to Kansas City, Kan. It does not profess nor hold itself out to do an interstate business. It sells tickets only from station to station in Kansas. By a contract with a street-railway company doing business in Kansas City, Kan., and Kansas City, Mo., there is an arrangement whereby the defendant’s interurban cars, at the end of each run on the defendant’s railway from Fort Leavenworth to Kansas City, Kan., become street cars for street-car traffic to the center of Kahsas City, Mo., and return, and such cars then resume their interurban service between Kansas City and Fort Leavenworth. Under this arrangement, when the interurban cars are performing this street-railway service, street-car fares are charged and collected as in ordinary street cars, and the earnings for street-railway service are divided between the street-railway company and the defendant company according to an agreement between them. In this street-railway service, also, the motorman and conductor of the interurban company who make the run to and from Leavenworth continue in charge of the car, as employees of the street-railway company, to and from Kansas City, Mo. They receive their instructions from the latter company, and this feature of the traffic is governed to some extent by city ordinances.
The accident which led to plaintiff’s injury occurred on the intercity viaduct on the street-railway tracks. Plaintiff says the air-brake equipment was defective, that it would not pump air, and that it failed to maintain pressure, and that this defect caused his car to collide with one in front of it, and injured him. The defendant offered evidence tending to show that the 'plaintiff’s injury was caused solely by his own negligence or that he was guilty of con- tributary negligence, which would have barred or minimized a recovery if the jury gave it credence; but'the trial court held that the federal safety-appliance act governed the traffic, and that a violation of that act barred the defense of contributory negligence otherwise available under the federal employer’s liability act. (Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497, 60 L. Ed. 1125.)
We do not think the federal safety-appliance act had anything to do with this case. The defendánt' was not doing an interstate business — at least not the sort of interstate business governed by that act. The pertinent provision of the federal safety-appliance statute reads:
... The provisions and requirements (of the acts of March 2, 1893, and April 1,1896) . . . shall be held to apply to all . . . cars . < . engaged in interstate commerce . . . excepting those . . . which are -used on street railways.” (Act of March 2, 1903, U. S. Comp. Stat. 1916, § 8613, 32 U. S. Stat. 943.) -
The case of Spokane & I. E. R. Co. v. United States, 241 U. S. 344, 60 L. Ed. 1037, is cited and relied on to sustain the ruling of the trial court. In that case an interurban railway company doing an interstate business between Spokane, Washington, and Coeur d’Alene, Idaho, was prosecuted, for noncompliance with the federal safety-appliance act. It claimed ‘that its transportation business was exempt from the regulations of the act by the terms of the exception relating to street railways because, in addition to its interstate business, its cars were “used on street railways.” The supreme court disapproved that contention. We think the case is not in point, or rather that it is helpful 'in' reaching an opposite conclusion in the case at bar. The Spokane company was undeniably and principally engaged in interstate commerce, apd it was not relieved from the control of the federal safety-appliance act merely because its cars" were also used on a street railway. But here, conversely, the defendant was exclusively engaged' in intrastate commerce except possibly where its cars were used in street-railway service, and consequently its transportation business was not governed by the federal safety-appliance act. (United States v. Geddes, 131 Fed. 452; United States v. Geddes, 180 Fed. 480.)
Whether the defendant’s business was interstate commerce of any sort so as to subject the defendant to the control of the federal employer’s liability act is a much closer question. Street-railway service between Kansas City, Kan., and the adjacent town of Kan sas City, Mo., is, of course, a sort of interstate commerce — a transportation business across a state line; but it is not the sort of interstate commerce with which congress ordinarily concerns itself.
In Omaha Street Ry. v. Int. Com. Comm., 230 U. S. 324, 57 L. Ed. 1501, the supreme court said:
“Street railroads, on the other hand, are local, are laid in streets as aids to street traffic, and for the use of a single community, even though that community be divided by state lines, or under different municipal control. When these street railroads carry passengers across a state line they are, of course, engaged in interstate commerce, but not the commerce which Congress had in mind when legislating in 1887. Street railroads transport passengers from street to street, from ward to ward, from city to suburbs, but the commerce to which Congress referred was that carried on by railroads engaged in hauling passengers or freight ‘between states,’ ‘between states and territories,’ ‘between the United States and foreign countries.’ ” (p. 336.)
In Kansas City Ry. v. McAdow, 240 U. S. 51, 60 L. Ed. 520, the supreme court intimated that under the then existing traffic arrangements between this company’s predecessor and the street railway in. the two Kansas Citys (an arrangement now substantially changed), the business of defendant was regulated by congress, but did not find it necessary to decide the question positively, for the obvious reason that the federal and state statutes were so similar in terms and effect that defendant’s liability to its injured employee was the same whether the action should have been brought under the Kansas statute (Gen. Stat. 1915, §8480 et seq.), or under the federal employer’s liability act (Act of April 22, 1908, and amendments of April 5, 1910, U. S. Comp. Stat. 1918, § 8657 et seq.).
And so here. It can lead to no conceivable difference whether the cause is tried under the state statute or under the federal employer’s liability act, so long as it is made clear that the action is not governed by the federal safety-appliance act. (Rockhold v. Railway Co., 97 Kan. 715, 720, 156 Pac. 775; Defenbaugh v. Railroad Co., 102 Kan. 569, 171 Pac. 647.)
In view of this conclusion, some matters argued by counsel need no discussion, but one other point should be noted. If the plaintiff did not know of the renting of the defendant’s cars to the street-railway company, and that his services were transferred to the latter during the time the cars were being used in street-railway service, the plaintiff had a right to continue to look to the defendant for his'damages if he was entitled thereto (King v. Railway Co., 108 Kan. 373, 195 Pac. 622), otherwise he should look to his special em ployer for the time being. (1 Labatt’s Master and Servant, 2d ed., § 52 et seq.; Note, 37 L. R. A. 33 et seq; and see, also, Behen v. Street Railway Co., 85 Kan. 491, 496, 118 Pac. 73.) From the record here, this court is unable to say whether plaintiff was so apprised or not. If this cause is not otherwise determined, this question should be given due consideration in another trial.
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The opinion of the court was delivered by
Porter, J.:
The appeal is from a judgment sustaining a demurrer to plaintiff’s evidence. The petition alleged that the plaintiff, who was 16 years of age was assaulted by a section foreman by the name of Larson, an agent and employee of defendant in charge of its tracks and right of way near Twenty-second street in Kansas City; that the section foreman ordered plaintiff to leave the right of way and struck, cursed and abused him because he did not immediately comply, and when he started to leave, followed and assaulted him a second time.
The answer consisted of a general denial, a defense that plaintiff was a trespasser and that only such force as was reasonably necessary to put him off the right of way was used. As a further defense it was denied under oath that defendant had in its .service at the .time mentioned any man named Larson, employed as a section foreman, agent, servant or employee.
Plaintiff testified that he lived with his parents a short distance from where the assault occurred; that Johnson, the switch’tender, called him to come over there to do an errand for him; he had often run errands for the employees of the defendant. On this occasion he was standing near the switch- shanty when a section crew came up on a hand car under Larson, the foreman. He had known Larson about two years and had seen him giving orders about the repair work. Larson engaged in a conversation with the switch tender, but spoke of the plaintiff, calling him vile and unspeakable names.' Plaintiff replied,. “I am no more of those names than you are. You don’t look any better than the rest of them along here.” This caused the foreman to “fly up in the air,” and plaintiff ran away; the foreman followed him, caught him and tried to choke him. Plaintiff ran and picked up a broom handle and tried to strike the foreman with it, but the latter took it and hit him across the back and shoulder. Plaintiff ran to where the switch tender was, who said,'“You will have to quit fighting as long as I am tending switches here.” Plaintiff then said he was going home to put on another shirt as the one he had was torn, and started to walk along the tracks when the foreman came toward him, and plaintiff ran through the right of way fence into a field, then turned east to Twenty-second street where he had to go through a barbed-wire fence, and the foreman caught up with him about 25 feet north of the defendant’s tracks and beat him severely. Plaintiff finally broke loose and started home. The foreman went back to the' right of way, got a piece of iron about a foot long and threw it at the plaintiff. In his cross-examination plaintiff testified:
“Q. Did you say anything to this man Larson [the foreman] except what you told us now? A. No, sir.
“Q.- Before he started to choke you had you refused to get off the track? A. No,-sir; he never even ordered me to get off the track.
“Q. He just started in without saying anything? A. Yes, sir.”
The theory of the defense is predicated upon a number of decisions in somewhat similar cases. The rule is stated in Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621:
“An employer may be held liable for the wrongful acts of his employee done in the scope of his employment. ... If done solely to accomplish the employee’s own purpose or device, although in an interval of his regular service, the employer is not liable.” (Syl. [¶] 2.)
In that case the trial court overruled a demurrer to the evidence which presented the question whether upon the facts , the railroad company was liable for the wrongful act of its brakeman in firing a shot which killed a trespasser — one of two young men who were riding from station to station on a freight- train without paying fare. They had gotten off at a station about 10 o’clock at night intending to board the train again. As they stood near the train a brakeman got a revolver from the baggage car, started towards them and with an oath ordered them to get “out of there.” The young men ran up the bank of the cut in which the train was standing, which was from 10 to 20 feet from the car and about 10 feet high.., On reaching the top of the bank one of them shouted “Go to hell.” The brakeman said, “What’s that?” climbed up the bank, ran after them and fired the fatal shot. The evidence showed that it was the duty of the brakeman to keep trespassers, including those who attempted to ride without paying fare, away from the train and that he had authority to use force if it was necessary. It was held in the opinion that in order to fix liability upon the employer it is not sufficient that the employment afforded the opportunity to do the wrong, or that it was done during the employment, but it must be done in the course or within the scope of the employment.
The opinion distinguishes between acts done by the servant in pursuit of his own ends although done in the time covered by his employment, and those done in pursuance of his duty in the course of his employment, and quotes as follows from 1 Thompson’s Commentaries on the Law of Negligence, § 526:
“If the servant step aside from his master’s business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities.”
Also from Wood’s Master & Servant, 2d ed., §307, as follows:
“The simple test is, whether they were acts within the scope of his employment; not whether they were done while prosecuting the master’s business; but, whether they were done by the servant in furtherance thereof, and were 'such as may fairly be said' to have been authorized by him ”
The judgment was reversed with directions to enter judgment for defendant because, as stated in the opinion—
“After careful consideration we are constrained to hold that a candid mind acting normally could not reasonably infer, from the facts presented in this record that the brakeman supposed or believed that these-men-fleeing as they were away from the train just about to start on its way, intended to suddenly turn back and board it. The fact that they were upon an embankment of considerable height- and the train in the cut below between forty and fifty feet distant, and that their assailant not only climbed the bank but still pursued and fired while they were in flight, not toward, but away from the train, precludes a person whose mind acting fairly and impartially from believing that the brakeman was acting within the scope of his employment when he fired the shot.” (p. 483.)
Other cases which support the same doctrine and which are reviewed in the case just cited are Hudson v. M. K. & T. Rly. Co., 16 Kan. 470; Mirick v. Suchy, 74 Kan. 715, 87 Pac. 1141; Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386.
The evidence of the plaintiff in this case shows that he was not a trespasser. He was invited on the premises by the switch tender. He had been accustomed to running errands for the employees of the defendant — as is said in the plaintiff’s brief, “going to the store for them and getting his mother to fix up lunches for them and they paid him for so doing. On the very day of the assault while he was crossing the tracks on his way home the switch tender called him and sent him on an errand.” The plaintiff was not a trespasser on the right of way; he was at least a licensee. The plaintiff’s evidence shows that he had not refused to get off the track before the foreman started to choke him. Up to that time the foreman had not even ordered him to get off the track but started to commit the assault without saying anything. Upon the doctrine of the Kemp case, supra, and other decisions cited, the demurrer was rightly sustained for the reason that it is obvious that a candid mind acting normally could not reasonably infer from the facts stated in the plaintiff’s testimony that Larson in making the assault and in following up the plaintiff for a half block after he had left the right of way and again assaulting him, supposed or believed that he was engaged in an attempt to discharge any duties devolving upon him, or that the foreman was in fact acting within the scope of his employment while assaulting the plaintiff.
The plaintiff contends that it was error to sustain the demurrer because of the state of the pleadings; it is insisted that the averments of-the petition respecting the authority of the section foreman must, by virtue of section 110, civil code, be taken as true because there was no verified denial of his authority in the answer. The petition alleges:
“One . . . Larson, whose first name is unknown, a section foreman and an agent, servant and employee of the defendant in charge of the defendant’s tracks and right of way at the said point, ordered this plaintiff to leave the said building and right of way of the defendant, and struck, etc. While this plaintiff was thus proceeding down the tracks the said Larson, acting as the agent, servant and employee of the defendant, following after this plaintiff again wilfully, wantonly, maliciously, unlawfully, wrongfully and violently struck, cursed, beat and abused this plaintiff, striking him with a club and forcibly ejecting him from the premises of the defendant, and inflicting upon him the following injuries, to wit:”
The verified denial is a restricted one and reads:
“For a third and further defense this defendant denies that it had in its s'ervice at the time and place mentioned in said petition any man named Larson employed as section foreman, agent, servant or employee.”
- The plaintiff contends that this is nothing more than a negative pregnant which implies an affirmative statement that the defendant did have in its employ a section foreman, agent, servant and employee at the time and place mentioned who was-in charge of the defendant’s tracks and right of way, and that such foreman, whether his name was Larson or not, “acting as the agent, servant and employee of the defendant, . . . again wilfully, wantonly, maliciously, unlawfully, wrongfully and violently struck, beat and abused this plaintiff,” etc.
“A negative pregnant involves and admits of an affirmative implication, or at least an implication of some kind favorable to the adverse party.” (5 Words & Phrases, 4739.)
It may be conceded that plaintiff’s contention is true to the extent that the language of the verified part of the answer must be considered as an admission or affirmation that the person who made the assault was an agent, servant and employee in charge of defendant’s tracks and right of way. We do not believe, however, that it can be taken as an affirmative implication that the section foreman, while following up and assaulting plaintiff was acting within the scope of his employment as such agent. It would require the most technical application of formal rules of pleading to give to the verified answer such an interpretation. Besides, the question whether the section foreman in assaulting the plaintiff was acting within the scope of his employment was on the petition itself a question of law; it was still a question of law when the demurrer was interposed to the evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Wichita Flour Mills Company has for several years been making a brand of flour called “Kansas Expansion.” On August 7, 1917, John C. Gaede,'who operates a bakery at Fredonia, ordered from it 150 barrels of that flour at $13.40 a barrel, to be shipped within thirty days, the order being accepted. On August 19 the buyer sent a letter stating that he canceled the order. The statement was repeated in a letter of September 2, which the seller appears to have accepted as a cancellation of the contract. The seller executed ■ an assignment of its claim against the buyer by reason of his breach of contract to Charles F. Rock, who sued him thereon. A verdict was returned in favor of the defendant, on which judgment was rendered. The plaintiff appeals.
The ground upon which the defendant gave notice of his cancellation or refusal to perform the contract was that a half car of Expansion flour, which he had begun using after its execution, had proved unfit for use- — was incapable of making marketable bread. Evidence was introduced by him tending to support this claim. The plaintiff complains of an instruction to the effect that the jury should return a verdict for the defendant if they found that the flour of that shipment was unfit as alleged, and believed that he was justified in cancelling his order for the later shipment on that account. The defendant testified that he had used at least one car of Expansion flour before that complained of and had .no fault to find with it. In response to his complaint regarding the half car shipment the Mills -company wrote that “every sack of Kansas Expansion is just like every other sack and our laboratory tests insure its being so.” To this the plaintiff replied, “Of course you claim that Kansas Expansion is the same always, but we beg to differ with you, it was alright until the last car we got.”
A buyer who has contracted for flour cannot be required to accept an article that will not make bread. (Kaull v. Blacker, 107 Kan. 578, 193 Pac. 182.) But it does not follow that one who has con-. tracted with the manufacturer for flour of a designated brand may without liability refuse to accept it because a shipment of the same brand purchased under a separate contract proves unfit for that purpose, where former shipments have been satisfactory. The breach of one contract does not justify the aggrieved party in refusing to perform another. (13 C. J. 613; Williston on Sales, 806, note 34; Brunswig v. Grain Co., 100 Kan. 261, 265, 164 Pac. 154.) The flour alleged to have been unfit for use was furnished upon a different contract from that here sued upon, and the fact that each related to the furnishing of flour of the same brand does not so connect the two contracts as to justify treating them as one for the purpose of taking the case out of the general rule. The statement in the letter of the Mills company (which the defendant contradicted) that all Expansion flour was alike cannot be deemed to establish conclusively even against the company that the flour that would have been shipped under the contract of August 7 would have been precisely like that of the shipment complained of. There seems no reason to assume that it would have resembled that rather than the earlier shipments .with which no fault was found, and at any rate the buyer had no right to rescind the new contract because of the seller’s breach of the prior contract, or upon his belief in the probability, however well founded, that the flour furnished under it would be unfit for use. As was said in a quite similar case the buyer’s “anticipation of nonperformance, however reasonable under the circumstances, would not have been a justification for . . . rescinding or repudiating the second contract.” (Hanson & Parker v. Wittenberg, 205 Mass. 319, 326.) The first paragraph of the syllabus of that case reads:
“Where there are two independent contracts between the same persons for the furnishing of certain goods of the same kind and quality at different times, the fact that the seller has committed a breach of the first contract by furnishing goods inferior to those required by the contract and by failing upon demand to furnish goods of the kind and quality required, does not justify the buyer in assuming that the seller also will break his second contract for a further supply of like goods, and, although the buyer may be reasonably apprehensive of a like breach of the second contract, he has no right to rescind or repudiate the second contract before it has been broken by the seller.”
We conclude that the bad quality of the flour delivered under the prior contract could afford no valid ground for the cancellation of or refusal to perform the contract here involved.
2. The plaintiff in his petition alleged that in accordance with its practice the Mills company upon the making of its contract with the defendant purchased 675 bushels of wheat at the market price of $2.88 for use in filling the order, and that by August 19 the price had declined 73 cents, so that it suffered a loss of $494.75. The instructions adopted this measure of damages in case of a verdict against the defendant. The plaintiff in his brief states that he asked permission, which was denied, to amend his petition so as "to present as an alternative measure of damages the difference between the contract price of the flour and its market value at the time of delivery. The abstract shows his request to have been merely a general one for leave to amend the petition to conform with the evidence. This, however, is not now important. If the case is to be retried it is desirable that a correct rule be adopted as to the amount of damages recoverable.
Inasmuch as the contract was to supply a brand manufactured by the seller it is obvious that the parties had in mind that the flour was not on hand — that it was to be made to fill the defend ant’s order. Where the buyer repudiates an executory contract to purchase an .article to be manufactured by the seller various tests have been applied to determine the amount of damages recoverable. Illustrative cases are collected in a note in 58 C. C. A. 363, 377, 380. The effort always is to apply a rule that will make good the actual loss under the particular facts of the case. Where no steps have been taken in performance of the contract and no expenses have been incurred in preparation for it the correct rule would appear to be the one sometimes adopted, allowing a recovery of the value of the bargain, measured by the difference between the contract price of the article and what it would cost to produce it. A more common rule, which may lack something in strict accuracy but which has the advantage of being easier of application, is to allow the difference between the contract price and the market price at the time and place of delivery, the same as in cases where the seller is not the manufacturer. It has been held that in a contract for the delivery of flour by the manufacturer it is competent for the parties to agree that the seller’s damages in case of a refusal by the buyer to accept delivery should be measured by the difference in the market price of wheat at the time of the* contract and at the time of its breach. (Milling Co. v. Baking Co., 95 Ohio St. 180; Sheffield-King Milling Co. v. Jacobs, 170 Wis. 389.) It has also been held that.(in the absence of a specific agreement) no recovery' can be had on account of the depreciation in the price of wheat purchased or contracted for, between the making of a contract to furnish flour and its breach by the buyer. (Russell Miller Milling Co. v. Bastasch, 70 Or. 4751.) That decision was based upon the theory that such damages were not within the contemplation of the parties ■when the contract was made. It does not appear except as it might be inferred from the fact of the seller being a milling company that it was to manufacture the flour, and in the opinion it is said: “For aught that appears in this case, the plaintiff could have gone into open market and purchased flour to fill its contract.” (p. 479.) The contract having been treated as one merely for the sale of personal property the decision is not really in point upon the question under consideration. In Erie Baking Co. v. Hubbard Milling Co., 217 Fed. 759, it was held that upon the buyer’s refusal to accept delivery of flour from the miller from whom it had contracted to take .it, damages should be allowed for the decline in value of wheat bought to be used in its manufacture, between the time of such purchase and the breach of the contract.
We think the measure of damages for the repudiation of a contract to buy flour from its manufacturer should ordinarily be tliQ difference between the agreed price and the market value at the time and place of delivery. Where the miller has purchased wheat from which to make the flour and its value declines before' the breach takes place this rule may obviously fail to compensate him for 'his actual loss. Possibly the practice of mills, as soon as a contract to deliver a certain quantity of flour is made, to buy or contract for sufficient wheat to produce it is so general that courts may take notice of it and parties may be deemed to contract with reference to it. Apart from that consideration, however, we think that such precaution is so reasonable that the loss that would be occasioned by a decline in value of wheat so purchased in case of a buyer’s refusal to accept the flour he had agreed to take must be regarded as within the contemplation of the parties upon entering into the contract. One who obtains a contract for the delivery of articles he is to manufacture and who upon the faith thereof incurs expenses in procuring the raw material is entitled to be compensated for any loss occasioned thereby in case of a default of the buyer. One who has agreed to furnish flour of his own manufacture at a certain time for a fixed price necessarily becomes in effect a speculator, subject to gain or loss according to the fluctuations of the wheat market, unless he arranges to procure the wheat necessary to fill his contract at the then existing price, upon the basis of which his own contract was made. It is only by hedging — by buying wheat against his contracts to deliver flour — that the miller is enabled to set a price for a future delivery based upon the cost of manufacture regardless of the subsequent rise or fall of wheat. He who causes a loss by refusing to carry out his own' agreement to take the flour ought not to be heard to urge that the manufacturer bought his wheat too soon when there is so great and obvious need for promptness in the matter. If the Mills company, as the plaintiff alleges, by reason of its 'contract with the defendant at once bought wheat sufficient to produce the required quantity of flour, and kept it continuously on hand, reserved for that purpose, until August 19, it should, as the trial court instructed, be .'allowed to recover damages measured by the fall in the price of wheat while it was so held. It is of course immaterial whether the identical wheat originally bought was kept during the whole period, it being sufficient if the quantity on hand was at all times larger by that amount than it would otherwise have been.
3. If damages should be .allowed upon the theory indicated no further allowance should be made. But if the plaintiff should fail to prove the purchase and retention of the wheat he might under an appropriate amendment of his pleadings show himself entitled to the difference between the agreed price and the market price of the four at the time the contract was canceled. Because of this possibility it becomes material to inquire what should be regarded as the date of cancellation. After the defendant’s letter of August 19 further correspondence was had in which the Mills company tried to persuade the defendant to accept the flour, and it appears that the effort was not. abandoned until about September 4. The Mills company was not required to acquiesce in the defendant’s renunciation o’f the contract, but had the privilege of waiting until the expiration of the time fixed for delivery upon the chance of his changing his mind. (Milling Co. v. Scale Co., 105 Kan. 87, 181 Pac. 554, and authorities there cited.)
4. Complaint is made of an instruction submitting to the jury the question whether the plaintiff was the legal holder of the claim. It appears to b.e true as the plaintiff contends that there was nothing in the evidence to impair the effect of the written assignment by the Mills company to him, so that there was in fact'nothing for the jury to try in this regard. The court refused, to strike out matters pleaded as a separate defense and overruled objections to evidence offered under it, but finally withdrew the defense from the consideration of the jury. There is therefore no occasion to pass upon the earlier rulings.
The judgment is reversed and the cause is remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of violating the liquor law, and appeals.
The information .contained four counts. The first count, which charged the defendant with selling intoxicating liquor, was withdrawn. The remaining counts charged the defendant with having intoxicating liquor in his possession, with keeping a common nuisance, and with manufacturing intoxicating liqudr contrary to law. It was not necessary the information should allege the defendant was not a druggist or registered pharmacist, and the information was otherwise correct in form and proper in substance. Each count of the information charged a separate offense, and the state was not obliged to elect between them. Venue was proved by the testimony of the sheriff. Each offense was fully proved. Neither the court nor the'county attorney was guilty of misconduct. The motion for a new trial was properly denied.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Bxjrch, J.:
The action was one by a minor for damages resulting from loss of support occasioned by drunkenness of her mother, caused by the defendant. A demurrer to the petition was sustained, and the plaintiff appeals.
The petition alleged 'the plaintiff’s parents had separated, her father had gone from the state of Kansas, and she was dependent on her mother for support. The defendant induced her mother to drink intoxicating liquor, procured, bought and furnished intoxicating liquor and gave it to her mother to drink, which liquor her mother did drink, to such an extent she became habitually intoxicated. As a consequence of such intoxication, the plaintiff was injured in means of support. The petition contained allegations of malice on the part of the defendant, and of anguish, humiliation and disgrace on the part of the plaintiff, and prayed for both actual and punitive damages.
The remedy accorded 'by civil-damage laws was unknown to the common law and, without a statute, the plaintiff could not recover. Besides that, at common law an infant could not enforce parental obligation to support, and had no remedy against a third person for deprivation of parental support.
The statute under which the action was commenced reads as follows:
“Every wife, child, parent, guardian or employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent or guardian shall have a right of action, in his or her own name, against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and á married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parents, guardian, or next friend, as the court shall direct; and all suits for damages under this act shall be by civil action in any of the courts of this state having jurisdiction thereof.” (Gen. Stat. 1915, § 5507.)
This section is part of the prohibitory law of 1881, and is a continuation of a section of the dramshop act of 1868. (Jockers v. Borgman, 29 Kan. 109.) The title of the dramshop -act is as follows :
“An act to restrain dramshops and taverns, and to regulate the sale of intoxicating liquors.” (Gen. Stat. 1868, ch. 35.)
The title of the prohibitory-law of 1881 is as follows:
“AN ACT to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and' mechanical purposes, apd to regulate the manufacture and sale thereof for. such excepted purposes.” (Laws 1881, ch. 128.)
It was necessary, under the constitution, which requires a bill to contain but one subject, which shall be clearly expressed in the title (art. 2, § 16), that the civil-damage provision be germane to the declared purposes of the two statutes. In the case of Werner v. Edmiston, 24 Kan. 147, the court considered the relation of the civil-damage section to the dramshop act. The opinion reads:
“It is insisted that' said sections 9 and 10 -are unconstitutional, because they contain matter foreign to that-in the other sections of the act, and not expressed in the title to the act. The title of the act is, ‘To restrain dram-shops' and taverns, and to regulate the sale of intoxicating liquors.’. The other sections contain provisions as to licenses, penalties for sales without license, prohibitions of sales upon certain days and to certain persons. Section 9 provides that any one who causes the intoxication of another shall be compelled to pay for his care:while so intoxicated; and section 10, that every person who is injured in his property or means of support by any intoxicated person, or in consequence of intoxication, may recover therefor of the person causing such intoxication.
“Now it seems to us that these matters come fairly within the scope of the title. They name certain conditions upon which one may sell liquor. The act in substance says to a party that you must not sell without a license; that when licensed you must not sell on certain days or to certain persons; and that if you sell, you will be held liable for the injury the liquor causes. Is not all this the regulation of the' sale of intoxicating liquors?” (p. 151.)
In the case of Durein v. Pontious, 34 Kan. 363, 8 Pac. 428, the court considered the relation of the civil-damage section to the prohibitory law of 1881. The opinion reads:
“It is first contended that said section 15 is unconstitutional, for the reason that the title of the act is not broad enough to cover it. The title of the act is, ‘An act to prohibit the manufacture .and sale of intoxicating liquors, except for medical, scientific, and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.’ This court has passed upon this question in the case of Werner v. Edmiston, 24 Kan. 147. That action was under section 10 of..the act of 1868, entitled ‘An act to restrain dramshops and taverns, and to..regulate the sale of intoxicating1 liquors.’ Section 15 of the statute of 1881 was. bodily transferred from the dramshop act of 1868. The prohibitory liquor Jaw of 1881 not only provides for prohibition, but also for the regulation of the sale of intoxicating liquors. The title of the act of 1881 is as broad as the title of the act of 1868, so far as embracing therein the provisions of said section 15; and the case of Werner v. Edmiston, supra, is therefore controlling.” (p. 359.)
Very soon after the enactment of the prohibitory law, the court had occasion to consider fully the relation of provisions of the act to its title. The law contained a section making it unlawful for any person to become intoxicated. In the case of The State v. Barrett, 27 Kan. 213, it was' held the section was not within the scope of the title, and in the opinion it was said:
“All that it seems to have had in contemplation was the prohibition of the manufacture and sale of intoxicating liquors in certain cases, and the regulation of the manufacture and sale of intoxicating liquor in certain other cases. With regard to what should be done with the liquors, independently of their manufacture and sale, it was silent. The title to the act does not, in the slightest or most remote degree, refer to the use of the liquor in the abstract. So far as the title of the act is concerned, after the liquor has been manufactured and sold, any person in the lawful and bona fide possession of it may use it as he sees fit; he may drink it, or bum it, or give it away, or he may use it in any other manner or for any other purpose to which his inclinations may lead him. The title to the act is wholly silent with reference to these matters. When the liquor is manufactured and sold, if manufactured and sold and purchased in good faith and according to law, the title to the act has then spent its force; it has then no further room for operation; its mission is then ended. When the sale is completed, it can have no further application to any transaction. . . .
“Of course wd know that the indirect and remote object of the title to the act, as well as of the act itself, is to prevent drunkenness, to prevent intoxication, and to prevent the use of intoxicating liquors as a beverage; and we shall construe both the title to the act and the act itself with reference to such object; but we cannot under such a title, consider drunkenness or intoxication or the use of intoxicating liquors, aside from the manufacture and sale of such intoxicating liquors, for they have no existence in the title to the act independent of the manufacture and sale of intoxicating liquors, and are indissolubly and inseparably connected with them. We cannot consider drunkenness, or intoxication, or the use of intoxicating liquors as a beverage, in the abstract, but can consider them only where they are incidents or concomitants to the manufacture. and sale of intoxicating liquors. When construing a provision of the act affecting the manufacture or sale of intoxicating liquors, we shall keep in view the fact that the act was intended to prevent the use of intoxicating liquors as a beverage, and shall construe the provision accordingly, and try to give it that construction which will best promote its object; but if we find a provision in the act that has no relation to the manufacture or sale of intoxicating liquors (whether it has any relation to drunkenness or not, or to intoxication or not, or to the use of intoxicating liquors as a beverage or not), we must say that the provision is outside of the title to the act; that it is not included in the title,’ and that it is therefore unconstitutional and void.” (pp. 219, 220.)
No statute has been enacted since 1881 \5rhich has placed the civil-damage section under broader title, and that section stands to-day as a remedy for nothing except injuries in consequence of intoxication caused by “selling; bartering, or giving intoxicating liquors.” In the case of Zibold v. Reneer, 73 Kan. 312, 85 Pac. 290, the court said:
“It was known to the legislature, as it is to all other persons, that the use of intoxicating liquors -as a beverage makes drunkards; that an intoxicated person is incapable of caring for himself, is always in danger of being injured, and is likely to inflict injury upon others, at the cost of his liberty— possibly his life; that he habitually neglects his business and family; that the harm resulting from the excessive use of intoxicating liquors always falls most pitilessly upon the dependents of the user, not infrequently pauperizing himself and family. The idea naturally suggested itself to the legislature that if the sellers of intoxicants were made liable to those who should sustain injury to person or property or means of support by an intoxicated person, or in consequence of intoxication, the hazard would be so great that fewer persons would engage in the business, and those who should engage in it would exercise more caution. The legislature, therefore, gave a cause of action and created a liability for these injuries where none existed at common law.” (p. 317.) 1
The dramshop act contained the following provision:
“The giving away of intoxicating liquors, or other shifts or device to evade the provisions of this act, shall be deemed and held to be an unlawful selling within the provisions of this act.” (Gen. Stat. 1868, ch. 35, § 11.)
This section was continued in- the prohibitory law in the following form:
“The giving away of intoxicating liquor, or any shifts or device to evade the provisions of this act, shall be deemed an unlawful selling within the provisions of this act.” (Laws 1881, ch- 128, § 17.)
In numerous sections of the prohibitory law other than the civil-damage section, giving intoxicating liquor was coupled with selling and bartering, ajnd in due time it became necessary to reach a conclusion respecting the meaning of the words, give, giving away, giving, and gift.. The conclusion.was that section 17 was inserted in the law to circumvent the ingenuity of those who might seek to effect sales without transgressing the letter of the law. (The State v. Nickerson, 30 Kan. 545, 549, 2 Pac. 654.) In the case of The State v. Standish, 37 Kan. 643, 16 Pac. 66, the syllabus reads:
“A person, in the lawful and bona fide possession of intoxicating liquor may use it as he sees fit; he may drink it himself or give it away, but he cannot by any shift or device in selling or giving away lawfully evade the provisions of the statute prohibiting the manufacture and sale of intoxicating liquors.
“A person cannot be convicted under section 16 of the prohibitory act of 1881 for keeping in his house, store, or in a wareroom thereof, intoxicating liquor for his own use, or for giving the same away, providing the giving away is done honestly and in good faith, and not as a shift or device to evade the provisions of said act.” (¶¶ 1, 2.)
In the opinion it was said:
“The limitation is that a person in giving away intoxicating liquor shall not do so to evade the provisions of the prohibitory act; in other words, any shift or device adopted in selling or giving away such liquors, to evade the provisions of that act, is prohibited.” (p. 647.)
In the opinion in the case of The State v. Fulker, 43 Kan. 237, 22 Pac. 1020, the court said:
“A person may purchase and bring liquor into the state for his own use without violating the statute; and one so lawfully obtaining possession of intoxicating liquor may use it as he sees fit, by drinking it himself or giving it to another, provided it is done in good faith, and not as a shift or device to evade the provisions of the prohibitory act.” (p. 241.)
The result is that under the various provisions of the prohibitory law of 1881, including the civil-damage section, the giving of intoxicating liquor means giving as a subterfuge for sale. The petition discloses nothing but simple gifts of intoxicating liquor, not made by way of pretense to accomplish sales, and consequently the petition does not state a cause of action under the civil-damage statute.
The plaintiff contends the court should expand the meaning of the civil-damage statute, to bring it in harmony with the increased reprobation of intoxicating liquors disclosed by recent legislation. The contention is met by the fact that, while the legislature has dealt more and more severely with intoxicating liquors, it has not seen fit to change the civil-damage statute, although it has had under consideration the extension of civil liability. In 1915, two additional civil-damage acts were passed. One of them made owners of property where intoxicating liquors are sold liable for damages caused by intoxication, and the other made cities similarly liable. (Laws 1915, ch. 233, ch. 234.) The original civil-damage act, however, was not amended, and the court cannot amend it by now giving it an interpretation different from that which it has borne continuously for substantially forty years.
The plaintiff contends she should be allowed to recover for damages accruing since passage of the bone-dry law (Laws 1917, ch. 215), inasmuch as that statute makes it unlawful to give intoxicating liquors to another. The contention is met by the fact that the civil-damage law gives no cause of action for damages accruing from intoxication caused by gift of liquor, and the bone-dry law did not amend the civil-damage law.
The judgment of the district' court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Shawano Canning Company, of Shawano, Wis., entered into a written contract to sell to the Ranney-Davis Mercantile Company, of Arkansas City, Kan., a quantity of canned beans and beets. It furnished approximately ten per cent of the beans and no beets. This action was brought against it because of its failure to deliver the remainder. The court directed a verdict for the plaintiff, submitting to the jury only the question of the amount of damages, which was fixed at that claimed in the petition. Judgment was rendered accordingly and the defendant appeals.
1. The parties disagree as to the meaning of the contract. The defendant’s view is that the beans and beets were to be grown by it or under its supervision and that a shortage in what it raised would relieve it from any obligation except to furnish the plaintiff with a pro rata amount of that contracted to all its customers. The plaintiff insists that the defendant was bound to buy the produce upon the open market if necessary, and that a shortage of crop was not material unless it were general — so as to prevent such a purchase. The portion of the contract relating to this matter reads:
“The seller agrees to plant sufficient acreage to cover all goods sold for delivery during the coming season and to use every effort to insure full delivery. If, however, on account of the shortage of crops, or other causes beyond the control of the seller it is unable to deliver the full amount herein named, it is agreed that the buyer will accept a pro rata delivery with other purchasers, of all grades of goods covered by this contract, without claim for damages.”
The language is not so explicit as might be desired, but we think the inference is fairly to be drawn that the produce furnished was to be grown by the defendant or growers under contract with it. Otherwise there would seem to be little purpose in the provisions relating to the planting. The clause “and to use every effort to insure full delivery” appears to us from the context to refer to the care to be given to the crops grown by the defendant or under its supervision and not to be a general pledge to the attempted performance of all the obligations assumed under the contract, which would seem to be superfluous. If we are right so far it follows that the shortage of crops referred to is a shortage in the crops of the defendant not due to any cause within its control. This interpretation appears to us to accord with the meaning which would naturally be given the contract upon a first reading and also after a critical examination.
There is little help to be had from the authorities. No closely similar contract seems to have been passed upon. In a recent note on the destruction of specific property which is the subject of a contract as an excuse for nonperformance (12 A. L. R. 1273, 1288-1294) cases are collected some of which bear indirectly upon the question under consideration. In one the seller was held liable under a contract to furnish canned tomatoes, containing a clause releasing him if performance was prevented by a cause beyond his control; but it was said in the opinion: “There is no allusion in the contract to any particular source from which these tomatoes were to be taken except that they should be of the 1901 pack of appellant’s cannery.” (Newell v. New Holstein Canning Co., 119 Wis. 635, 639.) In another an injury to his crops by frost was held not to affect the liability of the seller, who had agreed to grow and deliver them, but not on any particular land; he relied, however, only on the general rule as to the effect of the destruction .or loss of the subject of a contract, no special agreement having been made concerning the matter. (Anderson v. May, 50 Minn. 280.) In another the contract provided for the sale of a quantity of onion sets, the seller to be released as to any that were destroyed by fire or other unavoidable cause. He claimed a partial release by reason of his crop being injured by frost and the court rejected his offer to prove by oral evidence that the contract related to specific onion sets to be grown by him. (A. L. Jones & Co. v. Cochran et al., 33 Okla. 431.) In another, where a contract to furnish canned tomatoes, the source not being indicated, provided that the seller should not be liable in the event of “total failure or destruction of crop,” the question of the extent of the territory over which the crop shortage must extend to constitute a defense was held to be one of fact on which oral evidence was to be admitted. (Byley-Wilson Grocer Co. v. Seymour Canning Co., 129 Mo. App. 325.) In another, where the contract provided for only a pro rata delivery “in case of short pack” it was held that the reference is to a crop shortage in the territory within a reasonable distance and not merely in the immediate vicinity. (P. Pastene & Co. v. Greco Canning Co., 268 Fed. 168.) In others it was inferred that a contract for the delivery of produce was intended to apply to a specific crop from the fact that the seller was a grower and not a buyer, and at the time the contract was made represented that his crop was in good condition — a rather extreme case (Rice & Co. v. Weber, 48 Ill. App. 573); and from the fact that a written contract for the delivery of 3,000 bushels of wheat contained the provision “if there should be 500 bushels over or under this is to be taken on the same basis.” (St. Joseph Hay & Feed Co. v. Brewster [Mo. App.] 195 S. W. 71.)
Here the contract did not contemplate that the produce was to be grown on any particular land, but did contemplate, according to our interpretation, that it was to be grown by the defendant, that is, under its supervision. The defendant was not required (or indeed permitted) to go upon the market and buy beans and beets to fill the order, this situation resulting not from the general rule regarding impossibility of performance, but from the terms of this particular contract.
2. There was evidence that the defendant caused the planting of a sufficient acreage to insure enough crops under normal conditions to enable it to fill all its orders, but by reason of unfavorable weather no beets were produced, and only about eleven per cent enough beans for the -purpose; and that substantially that percentage of the plaintiff’s order was delivered. It appeared from the defendant’s evidence, however, that in some instances a larger percentage had been delivered to other buyers whose contracts called for a higher price. The plaintiff contends that, in order for the defendant to take advantage of the provision of the contract in regard to prorating, it had the burden of proving that it had delivered to each customer the share to which it was entitled, and no more, and because it failed to do. so it was liable for the full amount claimed. This theory seems to be supported by the decision of the circuit court of appeals in Acme Mfg. Co. v. Arminius Chemical Co., 264 Fed. 27, but the weight of the case as a mere matter of authority is considerably impaired by the fact'that one of the three judges participating dissented and the ruling of the district court was reversed. Moreover, while the contract there involved explicitly excused the seller from delivery when prevented by causes beyond its control its right to prorate among its customers was not a matter of express contract and there was perhaps on that account the more reason for making equitable conduct on its part essential to the exercise of the privilege. In two other federal cases the rule seems to be recognized that where the seller has a right to prorate his deliveries his failure to make a proportionate distribution can be complained of by a buyer only to the extent to which he is injured by it; that such failure does not entitle a plaintiff to the full amount of his claim, but only to a recovery to the extent to which he is thereby affected; that each buyer is concerned only with the disposition of the share of the goods to which he is entitled. (Jessup & Moore Paper Co. v. Piper, 133 Fed. 108; Consolidation Coal Co. v. Peninsular Portland C. Co., 272 Fed. 625.) In the case last cited it was said: “Again, while failure to exercise good faith, prudence, diligence, and reasonable care should forfeit relief to defendant to the extent that such failure has prejudiced plaintiff, we think that right to relief should not thereby be entirely forfeited, but should be lost only to the extent to which plaintiff has been thereby prejudiced.” (p. 632.) Under the contract here involved the plaintiff was only entitled to a delivery of a proportionate share of the crop raised by the defendant, assuming the shortage to be due to causes beyond its control. The defendant’s liability is limited to damages for its failure to make a delivery of that amount. If the portion of the crop which the defendant was entitled to deliver to other customers was not fairly distributed among them that fact forms no basis for a recovery by the plaintiff.
3. Some of the defendant’s contracts with other customers differed from that made with the plaintiff — in some instances imposing upon the defendant an absolute liability to furnish the goods ordered. We do not regard this circumstance as affecting the defendant’s liability to the plaintiff. The settlement between these parties must be made according to the terms of their contract with each other. If the defendant planted enough crops to enable him under normal conditions to meet the demands of all his customers, the fact that his unavoidable failure to do so renders him liable in damages to some of them works no injury to the plaintiff and gives it no cause of complaint.
4. The plaintiff asserts that some of the contracts on which partial delivery was made were entered into after the crop had suffered injury. This is a matter to be taken into account in determining whether the defendant contracted for a larger delivery than reasonable expectations warranted.
5. It appears that a part of the defendant’s crop was commandeered by the federal government under the National Defense Act. Any portion of it disposed of in that manner is to be treated so far as concerns the settlement between, the parties hereto as though it had been destroyed without fault on the part of the defendant. (Note, 15 A. L. R. 1512.)
6. The defendant asserts that the plaintiff did not prove the market value of the undelivered goods. There seems to be no dispute about the rule — merely as to whether it was followed with sufficient strictness. Any technical defect in that regard can be remedied on a new trial.
The judgment is reversed and the cause is remanded with directions to grant the defendant’s motion for a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs sued to recover a real-estate agent’s commission for the sale of land. Judgment was rendered in favor of the defendant, and the plaintiffs appeal.
The plaintiffs alleged that the defendant requested them to assist him in finding a purchaser for a ranch in Greenwood county; that he agreed to pay the plaintiffs a commission for their services; and that as a result of their efforts the land was sold to one F. H. Hull. The evidence tended to show that the defendant listed the land with the plaintiffs for sale; that one of the defendants had a conversation with Mr. Hull concerning the latter’s purchase of the land; that Mr. Hull was not interested; and that afterward, through others, he became interested in the land and purchased it. On the trial, the plaintiffs requested the following instructions:
“1. If at the time defendant listed the farm for sale with the plaintiffs he knew that F. H. Hull was a possible buyer and with knowledge defendant requested plaintiffs to interview and later F. H.’Hull did contract to buy the land, then I instruct you as a matter of law defendant would be liable to plaintiffs for the amount of the commission.
“2. If you find from the evidence in this case that the defendant employed plaintiffs to aid and assist defendant in selling said land, and défendant received such services from plaintiffs and later sold said real estate to F. H. Hull, then plaintiffs are entitled to prevail in this action and you should so find.”
Neither of these instructions was given. The court in substance instructed the jury that to entitle the plaintiffs to recover they must have been the proximate and procuring cause of the sale of the property.
1. Plaintiffs contend that it was error to refuse to give the instructions requested. Under them, the plaintiffs would have been entitled to recover although their efforts had no 'effect whatever in inducing Hull to buy the land. In order to entitle the plaintiffs to recover, it was incumbent on them, under the allegations of their petition, to show that their efforts assisted in bringing about the sale of the property. The requested instructions omitted the element that was incumbent on the plaintiffs to establish. The evidence did not tend to prove the allegations of the petition. The evidence tended to show that the plaintiffs were employed by the defendant to sell the land. Under that evidence, it was not error for the court to refuse to give the requested instructions.
2. The plaintiffs complain of the instructions that to entitle them to a commission they must have been the proximate procuring cause of the sale of the land. If they were employed to sell the land, those instructions were correct. (Beougher v. Clark, 81 Kan. 250, 106 Pac. 39.) Under the evidence, those instructions were properly given.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs sued to compel the specific performance of a contract for the sale of shares of stock in a bank; to have defendants Ben Kuiken and R. D. Rose decreed the holders in trust of a number of shares of the stock for the use and benefit of the plaintiffs; and, if it were impossible to compel specific performance of the sale of-the shares of stock in the bank, to recover damages for the failure of the defendants to comply with the contract. Judgment was rendered in favor of the plaintiffs for $300 damages, and the defendants appeal.
Findings of fact and conclusions of law were made by the court. The findings of fact showed that defendants Ben Kuiken, R. D. Rose, Charles Thompson, John Denton, and William Bechtold were stockholders and directors of defendant, The Ionia State Bank of Ionia, Kansas; that they owned a majority of the stock in the bank; that the plaintiffs began the organization of another bank to be established in Ionia; that negotiations resulted and a contract was entered into between the plaintiffs and defendants Ben Kuiken, R. D. Rose, Charles Thompson, John Denton, and William Bechtold by which they agreed to increase the capital stock of the Ionia State Bank from $10,000 to $20,000, to sell to each of the plaintiffs twenty shares of stock at the price of $125 a share, to increase the number of the directors of the bank from five to seven, and to elect two of the plaintiffs to the board of directors. Findings of fact numbered 16,17,18, and 19 were as follows:
“16. That the defendants stated at the time of the entering into said oral contract and their understanding was that it was not to be binding unless it was satisfactory to and approved by all of the stockholders of the bank.
“17. It was further understood by and between plaintiffs and defendants that defendants would in good faith try to procure the consent of the stockholders to the terms of said agreement.
“18. That defendants did pursuant to said agreement call a stockholders’ meeting for April first, 1919, at the defendant bank, and immediately set about in good faith to procure the consent of the stockholders to the oral agreement of the directors of said bank with plaintiffs.
“19. That the defendant Denton never was favorable to the agreement with plaintiffs and that the other stockholders of the bank, not defendants herein, immediately began to oppose the proposed action of the defendants, and many of the depositors and customers of said bank expressed themselves as opposed to the plaintiffs’ procuring so large a block of stock and some of them threatened to withdraw their deposits and business from the defendant bank if the proposed deal was consummated.”
The court further found that when the stockholders met, it was unanimously determined to increase the capital stock of the Ionia State Bank to $20,000 and that it was also unanimously determined not to sell twenty shares of the new stock to each of the plaintiffs and not to sell more than five shares to any one person.
The contract was not violated by the defendants. It provided that “it was not to be binding unless it was satisfactory to and approved by all of the stockholders of the bank”; the contract was not satisfactory to all the stockholders; some of them objected to it; neither was it approved by all of them.
The defendants voted not to sell twenty shares of stock to each of the plaintiffs. The plaintiffs argue that by thus voting, the defend ants violated their contract. That puts a wrong interpretation on it. The defendants held a majority of the stock and could have voted to increase that stock and to sell to each of the plaintiffs twenty shares; but, their contract was not to sell to the plaintiffs unless it was satisfactory to all the stockholders. When the defendants learned that the contract was objected to by some of the stockholders and that they disapproved it, the defendants were released from all obligation to the plaintiffs under it. There was no binding contract until it was approved by all the stockholders.
(Filed July 8, 1922.)
The judgment is reversed, and the trial court is directed to enter judgment for the defendants. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant, whose education had been for the priesthood, and who, from religious zeal, had taken the novitiate for the most austere monastic order, the Passionists, shot and killed Caroline Cunningham, ihe only girl he ever cared for, on the steps of St. Mary’s Cathedral in Wichita, immediately after he had attended early mass on Sunday morning, August 1, 1920. He was convicted of murder in the second degree, and appeals.
As a child, the defendant lacked the play instinct, indispensable to normal development of the human mind. As a youth, he was slow in his studies, morose in disposition, did not participate in sports and games, and formed no youthful companionships. As a young man, he was morbid, subject to fits, of depression, and unstable in purpose. He displayed great religious fervor, and studied to be, a priest. He changed his mind, concluded he would become a lawyer, and went to law school for four weeks. Then for a. year and a half he studied philosophy, preparatory to entering the priesthood. Within three months of the time he would have completed his course in philosophy, he decided he would become a monk, and sought refuge with the Passionists, in order to save his immortal soul. He was affiliated with the Passionists for less than two years, and when he left their retreat he was a nervous wreck. On successive mornings he would go a mile to church in inclement weather, scantily clad, so that he might contract pneumonia and die. He was easily excited to rage, and his father testified that only from a sense of humiliation did he refrain from placing his son in an asylum. Later the young man seemed to improve, and was employed in a bank in Wichita. Officers of the bank testified he was entrusted with no work involving initiative or discretion, could not grasp instructions, was forgetful, and displayed the mentality of a boy of twelve or fourteen, although he was twenty-six years old. He enlisted in the army, and in August, 1918, was sent to France, where he remained until June, 1919. He did not enlist from patriotic motives; he hoped he might be killed. In France, he was orderly for a Roman Catholic priest who was chaplain of his regiment. 1 In an affidavit for continuance, it was stated the priest, if present at the trial,, would testify that the defendant, although very religious, was' not merely queer and melancholy, but was mentally deranged. In the fall of 19.19, the defendant was placed in his father’s bank in the little town of Schulte, near Wichita. His conduct at Schulte was strange, and witnesses for the state who knew him there testified he was. of unsound mind. Before going into the army, the defendant became engaged to marry Caroline Cunningham, but soon after he returned from France she broke the engagement. Sometimes, in fits of passion, he displayed a tendency to do personal violence, and on one occasion, for a fancied grievance, he threatened his father with an axe. In May, 1920, he purchased a pistol, which he carried about with him continuously. In May and June he told different persons he was worried and troubled, and said he intended to kill Miss Cunningham. He said he might just as well be lying in the penitentiary as to be in the bank at Schulte. The latter part of June he wrote Miss Cunningham a letter in which he said:
“My love has turned, to hate, and I hate you and I curse you and hope all the bad luck possible will fall upon you if you ever marry any one.”
On July 12 he wrote her the following letter:
“My dear Caroline: It’s a year since you broke my heart, and I feel the disappointment as keenly as ever. Life has been a vale of tears and sorrows for me. I would have put an end to my life long ago, but for the thought of an afterlife. Dear Caroline, I have been mean to you, and wished you every evil possible, but all the while I have loved you just the same. It was grief and sorrow that made me so cruel. But today I am writing you to ask your forgiveness. I take back the curse I pronounced on you, and the evils I wished you. Yes, Caroline, I’ll try once more to forgive you, and ask your forgiveness. I hope and pray that God will bless you once more, and make you the happiest girl in this world. I ask you to pray that God may give me the grace to come back to the church and lead' a good life again. I intend to go to confession next Saturday. Henceforth .I’ll try to bear my sorrows patiently and with resignation. You can marry Jimmie, if you like him, and I’ll ask God’s blessing upon your union. Oh how I would have liked to realize my fond hopes. There is but one thing I would like to ask you. It has been and still is a mystery to me, why you jilted me. Don’t be afraid of hurting my feelings. My heart is broken already, and your telling me the truth will not make me unhappier. Let me hear from you soon. With love and good wishes, I am Your heartbroken Teddy.”
On Friday before Sunday, August 1, the defendant told his sister his nerves were giving out, and he would be obliged to leave the bank.
After he fired the fatal shot, the defendant uttered a prayer, and leaned against a pillar of the cathedral, trembling violently. The pistol was in his coat pocket, and he had fired through his coat. He offered no resistance when the pistol was taken from him and, in answer to horrified inquiries, said he did not know why he shot the girl. He was taken into custody without protest, and in the afternoon was questioned by the chief of police and the county attorney. He said he arrived in Wichita about seven in the morning, and went to 8 o’clock mass. After the service he stood on the steps of the cathedral, simply looking about for any one he might know. He was not waiting for Miss Cunningham. When he saw her coming up the steps of the cathedral to the 9:15 service, he wanted to talk to her, but shot without speaking. A portion of his statement to the officers follows: .
“Q. What led up to this shooting? A. Why, there was various things led up to it.
“Q. Well, what were they? A. Well, I don’t know—
“Q. . . . Don’t you want to tell them? A. No, .they are more or less personal matters.
“Q. You don’t want to tell them? A. I am willing to confess that I shot her, and of course the law can take its course that way. Of course it is all over- — it is personal matters that have led me to it.
“Q. . . . Personal matters between you and her? A. Well, then other things — different other things that — not only her, but different other things that came up in my life that — ■
“Q. Didn’t you realize what you were doing this morning when you shot her? A. Well, I didn’t intend to do it — I didn’t know — because I was going to talk to her — and just all at once I took a notion and done it so fast, I didn’t — I went up to her with the intention — I went up to her with the intention — walked up to her with the intention of.talking to her, and I just—
“Q. Instead of talking to her, you shot her — -is that the idea? A. Yes.
.“Q. Well now, Theodore, you said something — that it was a personal matter between her and you — this trouble came up — you don’t mean that there was anything wrong with her do you? A. No, not at all. ... I thought she was an ideal girl all the time, but I didn’t think very much of her breaking her promise without a reason, and I found out she gave it to me in bad faith. That is what grieved me so much, to think that for 'two long years she gave me her promise in bad faith.
“Q. Well, that really was what was back of the biggest part of this affair, this trouble, wasn’t it? A. Well, I don’t know- — I had so many troubles. I don’t know just what caused me to do it. It wasn’t this matter alone, but I have worried all my life, but I don’t know what it is — it's just foolishness sometimes — I don’t know whether I inherited it or not. But I have never /been satisfied anywhere — never been happy anywhere. And the responsibility of the bank made it so much worse, and I never had anybody at home or had anybody myself. I brooded alone about all my troubles, and I was always inclined to get in the blues quite often. Sometimes it would stick with me for a couple of days. If it hadn’t been for her, I wouldn’t probably have been here now; for I went into the army in the expectation of getting killed. I was glad to go over there just to get out of my troubles. Of course she cheered me up, and all that, bu&wkey;I don’t think I — if I didn’t — if everything else had been all right, I am very sure I wouldn’t have shot" her, I guess — I thought too much of her to harm her in that way. -
“Q. Theodore, if you thought so much of her, what was the idea of shooting her? A. I don’t know — I don’t just know why I did it either.”
At the trial, eminent alienists who had examined the defendant, and the only ‘specialists in nervous and mental diseases who were called as witnesses, testified the defendant is a constitutional psychopath, which is the euphonious equivalent of Lombroso’s “moral idiot.” The alienists discovered in the defendant’s mind a delusion that he might properly be the instrument of God to kill the girl for her sin in breaking her engagement.
The information was filed on September 30, 1920. On December 6, the defendant was arraigned, and stood, mute. On December 9, a motion to quash the information was denied, and the case was set for trial on December 14. The defendant’s father employed counsel to represent him. On December 14 and 15, the following affidavits were- filed in the case:
“S. B. Amidon, of lawful age, being first'-duly sworn, upon oath deposes and says:
“That he is now and for more than thirty-three years last past has been actually engaged in the practice of law in the city of Wichita, Kan., and for the thirty years last past he has been acquainted with the father of Theodore Ossweiler, and has been his attorney during such time; that he has known Theodore Ossweiler, Jr., practically all of the time since his birth; that he has been employed by Theodore Ossweiler to defend his son, the defendant in the above entitled cause, and that he has been intimately acquainted with the said defendant during the times herein mentioned.
“Affiant states that he is vice-president, and was vice-president during the times mentioned, of the Southwest State Bank of Wichita, Kan., and that both prior to the time the defendant engaged in the World War and after his return from France, said defendant worked for a time in said bank, and affiant states that he noticed at said time that the said defendant was queer, odd, morose, forgetful, and incapable of attending to business, and that in the judgment of this affiant during said time said defendant was a person of unsound mind; that this affiant saw the said defendant frequently, observed him carefully; that, he knew of the said defendant studying for a time for the priesthood, and following various other kinds of study, but that by reason of the condition of his mind, he was unable to accomplish in his studies that which he set out to accomplish.
“Affiant states that since the first day of August, 1920, he has had frequent audiences with the defendant, and has talked with him frequently, and affiant states that, in his opinion, said defendant is not at this time capable of making this affidavit, and is not mentally competent to make this affidavit, and that in the judgment of this affiant said defendant is insane and.was insane on the first day of August, and is now insane, and at this time is feeble-minded and incompetent mentally to make a rational defense, -and that the defendant is unable to give this affiant a rational account of the occurrences on the first day of August, 1920, and of how the occurrence happened and why it happened, and of the. various facts leading up thereto and concluding therewith, and that in the judgment of this affiant said defendant does not understand the difference between right and wrong, and does not at this time understand the moral effect or turpitude of the crime which he is charged to have committed in this cause or the nature and consequence of said act. That if said defendant committed said crime, he did it while in a state of insanity, and while he Was unable to understand the difference between right and wrong; that affiant makes this affidavit for and on behalf of the defendant, and that in the opinion of this affiant and in the judgment of this affiant, said defendant is incompetent to make this affidavit or to make any defense in said cause, by reason of the fact that said defendant is feeble-minded and insane and does not understand what is being done in this cause, and does not understand the difference between right and wrong, and does not know the nature and effect of the trial now about to be proceeded with. Affiant states that he has had full charge of the defense in this case, and that -he has consulted with the father of the defendant very frequently in order to secure the presence of witnesses for the defense, and affiant states that said defendant cannot safely proceed to the trial of this cause at this time on account of the absence of material witnesses to the said defendant.’ [The remainder of this affidavit was in due form as an affidavit for a continuance on account of the absence of material witnesses.]”
“Theodore Ossweiler, of lawful age, being first duly sworn, upon oath deposes and says:
“That he is a resident of Sedgwick county, Kansas, and has been a resident of said county and state for 42 years; that he is the father of the defendant in this the above entitled cause, and affiant states that the defendant is now and has been, in the judgment of this affiant, and was on the first day of August, 1920, and ever since has been and is now, insane and unable to make a rational defense in this the above entitled cause, is feeble-minded and mentally incompetent to make a rational defense; and that he is now and has been since the said first day of August, and was on said fust day of August, 1920, insane; that he employed the firm of Dale, Amidon, Buckland & Hart to defend the defendant in the above entitled cause; that he has given them such information as is within his knowledge, and affiant further states that in his judgment defendant does not possess the necessary knowledge to determine the nature of the proceedings now being had in this the above entitled cause, and his mental condition is such that he cannot understand and does not understand the nature of the proceedings now taking place in this cause, and the nature of the proceedings in this cause, and that he is not mentally capable of making his defense in this cause, and for that reason his attorneys have been unable to properly prepare a defense in this cause, and are unable to go to trial at this time; that said defendant is now unable to recall the facts of the transactions involved in the charges against him so as to assist his counsel in the preparation of his defense or to testify as a witness or even to remember events from day to day.”
Following filing of these affidavits, a colloquy ensued between the court and counsel for the state concerning what should be done. The court and counsel for the state sought to have counsel representing the defendant admit he was applying for an inquiry respecting the defendant’s present sanity, or else admit he was applying for a continuance only. He stood on the affidavits. The record shows the following:
“By the court: Do you care to say anything further on the matter?
“Defendant’s counsel: No, your honor.
“By the court: You asked for a few moments for conference; are you ready to proceed?
“Defendant’s counsel: We are ready.
“By the court: Has the state anything further to state?
“Plaintiff’s counsel: Nothing.
“Defendant’s counsel: Except, if the state’s attorney wants the court to make a finding — judgment, that the defendant is insane, and send him to the asylum for the insane, we have no objection to it.
“Plaintiff’s counsel: But we are not asking for that.
“Defendant’s counsel: Then we re-offer our affidavits.
“By the court: What has the state to say?
“Plaintiff’s counsel: We have nothing further to say.
“Defendant’s counsel: Our affidavits are considered as filed and admitted, are they?
“Plaintiff’s counsel: We understood as an application for continuance. I believe that was counsel’s statement.
“Defendant’s counsel: Under the statement of Mr. Elcock, assistant bounty attorney, as to what he thought the court’s duty was — to make a finding, we will re-offer the affidavits for that purpose, on the question of the defendant’s present sanity or insanity.”
Another colloquy ensued, in which counsel representing the defendant refused to be placed in the attitude of making application for an investigation of the defendant’s present sanity. The colloquy was brought to a conclusion as follows:
“By the court: I imagine, under this statute, the application is made for the purpose of continuance, on the ground that the defendant is insane at this time and unable to proceed to trial for that reason, that the court has the power to appoint a commission to examine into his sanity, or to empanel the jury to try the issue.
“Plaintiff’s counsel: Or try it yourself as a court.
“By the court: I rather imagine the method of procedure is largely to the discretion of the county attorney as to whether it shall be a commission or whether the jury shall determine the matter.
“Plaintiff’s counsel: A commission is satisfactory to me.
“Defendant’s counsel: If the commission is appointed, I want [the record] to show that the commission is appointed on the application of the state. We are not applying for the commission.
“Plaintiff’s counsel: As’I understood, here is an affidavit that purports to show that this defendant is now insane. He is in that condition where he is unable to properly prepare for a defense or make a defense. That is a showing before the court on the part of the defendant. If the court determines to try this at this time, why, it is immaterial to the state which way it is tried. I merely suggest the commission as probably a briefer way to get at it, and a quicker way. I am not asking, particularly, for a commission, or court, or jury.
“Defendant’s counsel: Let the record show that we are ready to go ahead with the trial of the case.
“Plaintiff’s counsel: We are ready.
“Defendant’s counsel: Let the record show that in announcing ourselves ready for trial, we do so, not waiving any of our rights in our affidavit for continuance.
“By the court: The applications for continuance are overruled.”
In the case of In re Wright, 74 Kan. 409, 89 Pac. 678, the third paragraph of the syllabus reads as follows:
“Where upon the trial of a person charged with a crime it is claimed that he is then unable to make answer and defense thereto in a rational manner, because of mental incapacity which has arisen since the alleged commission of the offense, it is the duty of the court where such trial is pending to make inquiry concerning such disability, and, if found to exist, to stop further proceedings in the trial until such disability has been'removed. Failure in this respect, whereby an insane person is forced into trial, will render all subsequent proceedings void.”
In the Wright case the petitioner was charged with felony, arrested, and brought before the judge of the city court of Wichita for preliminary examination. The examination was postponed until April 4. On April 3 the petitioner was adjudged insane, as the result of proceedings in the probate court. On April 4, a motion called a plea in bar was filed in the city court, to discharge the petitioner, on the ground the city court had lost jurisdiction. The proceedings in the probate court, including the verdict of lunacy, were set out in the motion. The court denied the motion, held a preliminary examination, bound the accused over to the district court and, in default of bail, committed him to jail. In holding the city court did not lose jurisdiction, the court said:
“It is the law of this country, independent of any statute, that a defendant shall not be compelled to answer to, or defend against, a criminal charge if mentally or physically unable at the time to do so in a rational manner, when such disability has developed after the alleged commission of such crime; but, in the absence of a statute to the contrary, the duty of determining whether or not such disability exists rests with the court whose duty it is to hear such answer or defense.
“When the attention of a court is called to the fact that the defendant about to be arraigned before it is unable, because of mental disability, to make proper defense to the accusation against him, it is doubtless the duty of the court to take notice of the suggestion and to make such inquiry concerning it as will fully protect the rights of the accused. Upon such an inquiry the findings of a court in lunacy proceeding, and any other proper evidence, may be received and considered. The verdict and proceedings presented to the magistrate in this case can only be considered as evidence tending to show the present mental condition of the petitioner. It appears that this evidence was offered for another and different purpose, but the object and manner of its presentation are immaterial. It was sufficient to call the attention of the court to the claim that the defendant was insane and incapable of making proper answer to the charge pending against him. This was, a matter of too much gravity to be ignored because of any supposed irregularity in the form of its presentation. It was the duty of the magistrate to take notice of this claim and determine the defendant’s mental condition before' proceeding further with the examination.” (p. 411.)
Although authorities were not reviewed in this opinion, they were carefully examined before it was written, and the decision estab ■lished the practice to be followed in this state. Since the decision was rendered, it has been supplemented by two statutes.
Section 4 of chapter 299 of the Laws of 1911 reads as follows:
“Whenever any person under indictment or information, and before or during the trial thereon, and before verdict is rendered, shall be found by the court in which such indictment or information is filed, or by a commission or another jury empaneled for the purpose of trying such question, to be insane, an idiot or an imbecile and unable to comprehend his position, and to make his defense, the court shall forthwith commit him to the state asylum for the dangerous insane for safe keeping and treatment; and such person shall be received and cared for at the said institution until he shall recover, when he shall be returned to the court from which he was received to be placed on trial upon said indictment or information.” (Gen. Stat. 1915, § 10043.)
Section 2 of chapter 299 of the Laws of 1919 reads as follows:
“That whenever in a court of record, during the hearing of any person charged with a misdemeanor or crime, it shall be made to appear to the court that the person is feeble-minded, the court shall summarily remand such person to the probate court of the county for examination under the provisions of this act.”
The statute of 1919 took feeble-mindedness out of the statute of 1915. Should the court find the defendant to be suffering - from mental defect other than feeble-mindedness, he should be committed to the hospital for dangerous insane; should he be suffering from feeble-mindedness, he should be remanded to the probate court.
There can be no doubt about the. sufficiency of the affidavits filed on December 14 and 15 to challenge the attention of the court and move it to investigate the defendant’s mental condition. The statements contained in the affidavits were made under the oaths of responsible persons, one of them subject to discipline by the court, and both of them subject to the penalties for perjury. The affidavits contained, not merely expressions of opinion, but statements of fact which placed the defendant within the protection of the court. As indicated in the Wright case, it made no difference that the showing of present insanity was made in affidavits supporting an application for continuance only. When the showing was presented, it was the court’s duty to find out if the defendant was in fit mental, condition to be tried, whether counsel for either side made application for the inquiry or not. In effect, the law made the application for the defendant and, however the attorneys might fence about the matter, the court was not authorized to proceed with a trial on the merits until it had ascertained, by one of the statutory methods, whether the defendant was capable of making a rational defense. Trial on the merits is, of course, no. substitute for the preliminary investigation. The question of capacity to commit crime on August 1 bears no relation to the question of capacity on December 15 following to defend against a charge of crime.
The judgment of the district court is reversed, and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
Marshall, J.:
Defendants Neiswanger appeal from a judgment rendered against them in favor of E. L. Curl on an accounting between them as partners. The only question argued by the Neiswangers is, Were the causes of action on which judgment was rendered in favor of E. L. Curl barred by the statute of limitations?
It is necessary to detail the circumstances that culminated in the judgment from which this appeal is taken. The defendants, E. L. Curl, Hal W. Neiswanger, and Jennie B. Neiswanger, entered into a partnership in 1913, but ceased to do business as partners in 1914. This action was commenced in 1914 by F. A. Rothenberger against the defendants as partners, to recover on an indebtedness incurred by the partnership. Judgment was rendered in favor of Rothenberger against the partnership on October 28, 1914, for $1,001 with interest at six per cent per annum. H. E. Mallery held a chattel mortgage on the stock of goods owned by the partnership and was named as a defendant. At the time judgment was rendered in favoi of Rothenberger, a stipulation was entered into between the parties, in part as follows:
“It is further agreed that the said H. E. Mallery have the first lien on said stock of goods to the amount as shall be found from the accounting to be due him in this case and that the plaintiff F. A. Rothenberger have a second lien on said stock of goods for the amount of his judgment.
“It is further stipulated and agreed that Hon. J. W. Huff of-Downs, Kansas, 'be appointed as referee to take the testimony and the accounting between all ■the parties to this action and make a full report of said accounting to the court together with his findings of amount due that may be due any of the parties herein from said stock of goods or from any party in this action.
“That said referee make a report in writing to this court not later than the 8th day of November, 1914, showing what amount if any the individual partners have received from the partnership funds and what amount if any the defendant Mallery has received from said co-partnership which would be credited upon his claim against the partnership and further showing what said co-partnership has received from the individual partners if any.
“That any funds remaining from the proceeds of any sale to be held hereunder after the lien of defendant Mallery if any be satisfied therefrom together with the lien of the plaintiff shall be left with the clerk of the court to await the order thereof distributing the same.”
A referee was appointed under that stipulation, and he made findings, among which were the following:
“The defendant Curl has paid in cash to said partnership $814.85, or $414.85 more than Neiswangers have invested therein.
“In addition to the plaintiff’s claim against said stock two notes are held by the First State Bank of Alton in the principal sum of $1218.00 and accumulated interest thereon signed by the defendants Neiswanger and Curl; that said .notes were given for the benefit of said partnership and that their proceeds were used by said partnership.”
The referee made conclusions of law, among which were the following :
“The defendants, Neiswanger, should pay to said Curl one-half of the $414.85 so advanced by him.
“The defendant Curl, and the defendants Neiswanger, should pay, half and half, the amounts due on said notes and one should account for and pay to the other one-half of any sums paid thereon.”
The referee found that the value of the stock of goods was less than the amount due Mallery under his mortgage. That report was filed on February 1, 1915, and was approved in May, 1915. Final judgment was rendered on the-report, but no judgment was rendered as between Curl and the Neiswangers. Rothenberger caused-.execution to be issued on the judgment rendered in his favor, and the execution was about to be levied on the property of Curl when, on January 29, 1916, he paid the full amount thereof, $1,260, and immediately filed.notice of his payment of the judgment and his claim to contribution under section 474 of the code of civil procedure. About January 25, 1917, Curl paid the notes held by the First State Bank of Alton. On September 8, 1920, he caused execution to be issued on the Rothenberger judgment, and to be levied on real property, the title to which was in the name of Jennie B. Neiswanger. On October 28, 1920, the Neiswangers filed an application asking that the execution be stayed until an accounting be had between them and Curl. That application was granted, and the court directed that pleadings for an accounting be filed and that an accounting be made. On February-2,1921, the Neiswangers filed their petition against Curl in which they pleaded matters to excuse them from paying any part of the partnership debts, ineluding the judgment that had been rendered in favor of Rothenberger. On April 16, 1921, Curl filed his answer and cross-petition, in which he pleaded the report of the referee, the payments that had been made by him, and .asked for contribution on account of the $414.85 that had been paid by him into the partnership and on account of the notes that had been held by the First State Bank of Alton. The Neiswangers on May 16, 1921, filed a reply to Curl’s answer and cross-petition in which they pleaded that the claims of Curl were barred by the statute of limitations. On May 19, 1921, the Neiswangers dismissed their petition against Curl, and moved for judgment on the pleadings which then consisted of Curl’s answer and cross-petition in the reply of the Neiswangers thereto. Their motion for judgment was denied. Curl moved for judgment on the pleadings; his motion was sustained, and judgment was rendered in his favor “in the sum of $285.14; being one-half of the $414 contributed by defendant Curl into the partnership, as found by the referee, with interest thereon at the rate of six per cent per annum from this date; and for the further sum of $978.14, being one-half of the amount paid by E. L. Curl on the notes found by the referee to be due and owing to the First State Bank of Alton, with interest thereon at the rate of six per cent per annum from this date.”
Curl’s cause of action for contribution on account of the money that had been advanced by him to the partnership accrued at the time the partnership was closed, if it had not accrued previous td that time; his cause of action for contribution on account of the' notes paid by him accrued at the time he paid them. Both of these causes of action accrued more than three years before his answer and cross-petition was filed in the accounting proceeding.
Curl argues,'“Will the statute of limitations ever run in a pending action?” What action to which Curl and the Neiswangers were parties was pending after the judgment in favor of Rothenberger had been rendered, and after the report of the referee had been filed and approved and final judgment had been rendered thereon? The answer is, none. That action was closed in every particular so far as • matters then pending before the court were concerned. It is true that no judgment was rendered on the report of the referee so far as Curl and the Neiswangers were concerned, but there does not appear to have been any pleadings filed by either of them against the other, and it does not appear that any judgment was asked by either of them on the report of the referee so far as the other was concerned. The action was closed. The judgment in favor of Rothenberger was alive, execution was issued on it, and that gave rise to the subsequent proceedings in which the judgment appealed from was rendered, but that execution did not open any matter that had been closed by the judgment that had been rendered on the report of the referee.
Curl also argues, “Will equity permit a party to invoke the court’s aid and accept its favor and later repudiate his own acts?” This argument must be based on the law of estoppel. What principle of the law of estoppel says that the Neiswangers cannot plead the statute of limitations against Curl’s claim? The position of Curl was not altered nor changed by the request for an accounting. He was not misled by that request. He could have commenced his action for contribution at any time after the cause of action accrued. Nothing was done by the Neiswangers to prevent him from commencing such an action. Nothing was done to change the position or attitude of Curl toward the Neiswangers. They did nothing to estop them from pleading the statute. No reason has been shown why the statute of limitations should not run against Curl’s causes of action.
In Finley v. Gilmore, 107 Kan. 349, 352, 191 Pac. 256, this language was used:
“The law is thoroughly established that when a business partnership is discontinued and its affairs are turned over to a liquidator for the purpose of being wound' up, a final settlement between the partners cannot be made, whether for division of proceeds or for determination of their proportionate liabilities, until the partnership assets have been sold, the credits collected, and the debts paid.”
In this instance, the partnership was closed when-the referee’s report was filed and final judgment was rendered thereon. In Brooks v. Campbell, 97 Kan. 208, 155 Pac. 41, this court said:
“When a partnership business is closed out, a cause of action for an accounting and settlement arises between the partners, under an implied contract mutually and equally to share the ’profits and bear the burdens of the partnership.
“A partnership business was closed out in April, 1908. An action for an accounting and settlement and for moneys due to one partner from the other partners was not begun until September, 1913. Held), that such action was barred by the statute of limitations.” (Syl. ¶¶ 1, 2.)
The court erred in rendering judgment in favor of Curl.
The judgment is reversed, and the trial court is directed to enter judgment in favor of the Neiswangers on their motion for judgment on the pleadings. ■ | [
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The opinion of the.court was delivered by
Mason, J.:
On December 28, 1915, a petition was filed in the district court, in which the LaSalle Street Trust & Savings Bank was named as the plaintiff, and which asked judgment against the defendants, Herbert Hackney and George Hackney, as guarantors of several notes said to be owned by the plaintiff. Summons was issued and served. The banking corporation named as the plaintiff had in fact been dissolved on January 18, 1915, and William C. Niblack had previously been appointed as its receiver. On October 14, 1916, such receiver asked to be substituted as plaintiff and to be permitted to file an amended petition, and the application was allowed and acted upon, the amendments being made by interlineation. Niblack died, and on April 5, 1921, an order was made reviving the action in the name of the new receiver, the Chicago Title & Trust Company. Herbert Hackney, who will hereafter be re ferred to as the defendant, appeals from the two orders referred to and from other rulings, further reference to which is here omitted to avoid complexity.
1. The plaintiff contends bhat the use of the name of the bank as plaintiff instead of that of the receiver was a mere inadvertence, which was properly corrected under authority of the provision of the code authorizing the court to “amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, . . . when such amendment does not change substantially the claim or defense.” (Gen. Stat. 1915, § 7032.) The defendant asserts that the filing of the original petition was a nullity because it named as plaintiff a corporation which had ceased to exist. No action can be maintained in the name of such a corporation. (Krutz v. Paola Town Co., 20 Kan. 397.) Where the only petition for a new trial filed within one year of the rendition of a judgment names as the adverse party one who has died, after the expiration of that period an administrator cannot be substituted so as to save the proceeding from the bar of the statute. (Monson v. Battelle, 103 Kan. 470, 173 Pac. 927.) Here, however, no question of the statute of limitations is involved. The question is not whether the substitution of the name of the receiver as plaintiff could operate by relation from the time the original petition was filed, so that an action should be deemed to have been begun at that time, but whether it created such a situation that an action should be regarded as pending against the defendant and in favor of the new plaintiff from the time of the amendment.
It has been held that a petition naming as plaintiff a person who is dead is a nullity and cannot be amended under a statute authorizing any amendment “which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought.” The court said that the language of the statute “in plain words indicates the existence of a real plaintiff as the original instigator of the action.” (Brooks v. Boston & Northern Street Railway, 211 Mass. 277, 279.) That case, however, was distinguished from an earlier one (Lewis v. Austin, 144 Mass. 383) in these words:
“That was a case where a live person having a valid claim, which, he was obliged to prosecute in the name of another, by inadvertence used the name of one who had died. But the real plaintiff was alive. As was pointed out in the opinion, if he had brought the action in his own name, clearly an amend ment could have been allowed. So also if brought in a fictitious name. Moreover, there had been appointed an administratrix of the estate of the deceased person in whose name the action might have been brought.” (p. 279.)
A statute authorizing the court before' which “the cause shall be pending” to allow amendments has been held not to apply to a petition giving the name of a dead person as the plaintiff, because “it is limited by its terms to an existing case — one that 'shall be pending’ at the time.” (Karrick v. Wetmore, 22 App. D. C. 487, 493.)
On the other hand it was said in Lewis v. Austin, supra:
“As the legal owner of a demand who brings a suit upon it in another’s name, or in the name of another person, can be allowed to substitute his own name, and as the beneficial owner who brings a suit in his own name can be allowed to substitute the name of the legal owner, it would seem to follow that when the beneficial owner brings a suit in a name, not of the legal owner, whether that of an existing person or not, the court has authority to allow him to substitute for it the name of the legal owner. It is no objection that there is no person in being of the name in which the suit is brought.” (p. 384.)
And in Denton v. Stephens et al., 32 Miss. 194, 196:
“Whether a nominal plaintiff be dead or alive at the institution of a suit upon a promissory note, cannot affect the right of the equitable owner to put it in use for the collection of the money, which he has the right to appropriate. Nor can it be of the least importance to the maker whether he is sued in the name of a living or a dead man, as in either event he would not be deprived .of any defence which he might have to the action. The amendment allowed, by striking out the name of the payee, who was dead, and inserting that of his administrator, — that is, the insertion of the name of one nominal plaintiff instead of the name of another nominal plaintiff, — was therefore a mere formal amendment. And if before the adoption of the statute, it could not have been made, its provisions, if they mean anything, and are not utterly nugatory, were assuredly broad enough to authorize it to be done. The amendment was therefore legitimate, and the action of the court in dismissing the cause consequently erroneous.”
We think it was proper for the court to allow the petition to be amended by inserting the name of the receiver as plaintiff and changing its allegations to conform to the facts. Assuming that the lack of a living plaintiff rendered ineffective all that had been done up to that point, there was no occasion to rewrite a petition upon fresh sheets of paper or otherwise characterize the subsequent steps as those of a new or different proceeding, although they amounted to'that in substance. We need not determine whether it would otherwise have been necessary to issue and serve a new summons in order to gain jurisdiction of the defendant, for on February 24, 1917, and June 22, 1917, he filed motions on nonjurisdictional grounds, thus entering a general appearance. The first motion (which was overruled) asked a dismissal of the action on the ground that a judgment in favor of the bank against the maker of the notes alleged to be guaranteed by the defendant had not been revived although the bank had been out of existence for more than two years. The other motion (which was allowed in part) asked for an order allowing the inspection of papers necessary to a defense.
The fact that the defendant was not given notice of the motion of the receiver to be substituted as plaintiff and to amend the petition accordingly does not affect the matter, since the action need not be regarded as having been begun until the changes had been made.
2. On September 17, 1920, the Chicago Title & Trust Company suggested the death of Niblack and asked to be substituted as plaintiff and to file an amended petition tendered with the motion. On December 15, 1920, the defendant filed an answer setting out among other matters the dissolution of the bank and asking that the action be abated. A reply consisting of a general denial was filed by the Title & Trust Company, which will hereafter be spoken of as the plaintiff. On January 3, 1921, a hearing was had on these pleadings and the case was taken under advisement. On January 6, 1921, the plaintiff gave notice of a motion to revive the action in its name. On January 19, 1921, the defendant, professing to appear specially for the purpose only of contesting the motion for revivor, filed an application to abate the action on the ground that it had'never really existed. On January 22, 1921, the plaintiff filed motions to set aside the submission as premature and to revive the action in its name. On April 5, 1921, the court sustained the two motions last referred to.
The defendant asserts that the court had no power to set aside the submission. We think such action was within its discretion, inasmuch as no decision had been renderd. Moreover, the issues involved appear to have constituted or at least included questions of law either identical or connected with those already'considered; and the defendant in the meantime had filed a new application for the abatement of the action. Other rulings complained of are in effect covered by what has already been said.
The plaintiff suggests that the rulings complained of are not appealable. Inasmuch as we find no error to have been committed that phase of the matter need not be gone into.
The decisions appealed from are affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the vendor of real estate to compel the vendee to perform. Judgment -was rendered for the plaintiff, and the defendant appeals.
The contract provided the land should be free from encumbrance, and the vendee based refusal to perform on existence of an encumbrance. The claimed encumbrance originated in a contract between property owners and the city in which the real estate is situated, relating to construction and maintenance of a sewer. The property owners, in consideration of benefits to be derived, granted to the city a perpetual easement to enter on described lots, including those in controversy, for the purpose of constructing, rebuilding, repairing, and perpetually maintaining a sewer thereon, the strip of land to be of sufficient width for the sewer, and the cost to be met by assessments on property on either side. The sewer was built under an ordinance conforming to the grant. The sewer was laid nine feet in the ground, occupied the east two feet of the lots in controversy, and had been paid for before the contract between the plaintiff and the defendant was made.
The court stated findings of fact and conclusions of law, which need not be reproduced at length. The defendant moved to set aside two of the findings, as not sustained by the evidence. Whether or not they were is not material, because findings not complained of determine the controversy. The conclusions of law were that the sewer was not an encumbrance, within the meaning of the contract, and that the defendant was estopped to complain of existence of the sewer. Both conclusions were correct.
The defendant’s argument that an .encumbrance existed is that the city was granted an easement in gross for construction and maintenance of the sewer, and an easement constitutes an encumbrance. Pertinent authorities are cited, which it is not necessary to review. The answer to the defendant’s argument is that the question whether a contract or covenant against encumbrances is broken, is not to be determined abstractly. The nature of the easement and its peculiar relation to the servient estate must be considered. Physical conditions not affecting title, and over which neither grantor nor grantee has control, are often held not to be encumbrances. This is particularly true of visible conditions, which the vendee must have taken into account when agreeing on price. (Ireton v. Thomas, 84 Kan. 70, 113 Pac. 306.) In the case of Armstrong v. Trust Co., 96 Kan. 722, 153 Pac. 507, the court said:
“The courts have not hesitated to adopt ‘the rule of reason’ in construing covenants against incumbrances, and have often recognized a distinction between incumbrances which are such in a strictly literal exactness, and those which, from the nature of the contract, the situation of the parties, and their evident intent at the time it was made, appear not to have been in contemplation.” (p. 724.)
In consonance with this, doctrine, outstanding leases may sometimes be regarded as benefits instead of burdens, and so not within the covenant against encumbrances. (Rawle on Covenants for Title, 5th ed., § 85.) In Unitarian Society v. Trust Co., 162 Iowa, 389, it was held a public sewer, five or six feet under ground, did not constitute a breach of the covenant against encumbrances.
An encumbrance must operate to diminish the value of the estate. (Clark v. Fisher, 54 Kan. 403, 38 Pac. 493.) In this instance, the sewer was a neighborhood lateral, and the grant was voluntarily made, to secure the benefits to be conferred on the property of the grantors; the defendant testified he knew there were sewer connections in the house he was buying, and he would not have purchased if it had not been equipped with sewer and bath; and the court expressly found the sewer was a benefit to the estate contracted to be conveyed. It would be a strange thing if the defendant could sue for damages for breach of contract, or breach of covenant against encumbrances, because of the existence of a physical condition which he considered so indispensable to the property that he would not have purchased if the condition had not existed. Because the sewer constituted a betterment instead of a detriment, it did not constitute an encumbrance, and the privilege of the city to enter for the purpose of maintaining efficiency of the sewer, should occasion arise, is an increment of benefit.
Mr. John L. High was agent of the plaintiff to negotiate the sale, and delivered the abstract of title to the defendant. The defend ant directed High to deliver the abstract to an attorney for examination, and the abstract was delivered to Mr. J. L. Sheldon, who examined it for the defendant, and made a number of requirements. The sewer contract was noted, but no requirement concerning it was stated. The court made the following finding of fact:
“The opinion of Mr. Sheldon on the title to said real estate was given to the plaintiff, and soon thereafter a meeting was held between the husband of the plaintiff, acting as her agent, and the defendant and his attorney. At this meeting the various objections concerning the title made by the attorney were read and discussed, and mention was made by the attorney of the Eshleman lease [sewer contract], and he there stated in the presence of the defendant that such lease was not considerd as an encumbrance on the title to the property, and that there was nothing that could be done about it. It was then agreed that the plaintiff should have the title to the property cor-, rected 'to meet the approval of Mr. Sheldon, and that when this was done the deed would be accepted by the defendant and the mortgage given back to him and the contract completed.”
The plaintiff employed Mr. F. M. Harris to perfect the title. He procured some quitclaim deeds, prosecuted to judgment an action to quiet title, and otherwise met all of Sheldon’s requirements. The plaintiff expended some $250 in thus perfecting the title, which Sheldon approved in writing.
No exception was taken to the quoted finding. The testimony was that after the subject of the sewer had been discussed, the defendant said to the plaintiff’s husband, acting for her, “If you clear up the title, and Mr. Sheldon passes on it, I will accept the property.” Harris and Sheldon were frequently in consultation, agreed that the sewer and the sewer contract did not create an encumbrance, and the testimony was that Sheldon told Harris the title would be approved if the other matters were cleared up. Plainly, when the other matters were cleared up, and Sheldon approved the title, the defendant was estopped to claim existence of an encumbrance.
The defendant invokes the rule that estoppel may not be predicated on statements which induce performance of acts which the party pleading estoppel was bound to perform. The plaintiff was not bound to go forward and spend money for nothing, if the sewer contract and sewer, about which it was agreed nothing could be done, were to be considered as an encumbrance.
Contrary to a suggestion of the defendant, there was no oral modification of the contract, or waiver requiring a new consideration. The provision of the contract relating to freedom from en cumbrance was under interpretation. The nature of the subject was such that the understanding and intention of the parties was decisive, and the defendant agreed he would abide the interpretation that the sewer was not an encumbrance, if the plaintiff would expend time, effort and money on other subjects. The expenditure was made, and the defendant is bound. In the case of Spaeth v. Kouns, 95 Kan. 320, 148 Pac. 651, specific performance was ordered, in part on the mere inequity, without violation of an inducing promise, of allowing repudiation after expense had been incurred in perfecting title to the approval of the vendee’s attorney. In the opinion the court said:
"Again, it may be well said that the result below was unfair. Defendant directed plaintiff to submit his abstract to defendant’s attorney. That attorney raised certain questions and made certain suggestions, to comply with all of which caused plaintiff expense and trouble. After compliance and after defendant’s attorney approved plaintiff’s abstract and title, defendant without reasonable excuse refused to carry out his bargain. He should be compelled to do so; . . .” (p. 326.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment against the defendant adjudging the specific performance of a contract he made with the plaintiff for the sale of a tract of land.
The defendant, who owned land in Kearny county, Kansas, resided in Anamosa, Iowa, and he contracted to sell it to the plaintiff, who resided in Garden City, Kan. The contract was based on the following correspondence. In a letter dated June 17, 1919, plaintiff wrote:
“Would be pleased to have your bottom dollar price net to you and best terms on which you would sell the N. W. quarter of 3-21-35, Kearny County, Kans.,” etc.
On June 18, 1919, defendant replied:
“I have had several cash offers of $800.00 for this piece of land, but will take $1000.00 cash. This is the lowest possible price.”
On June 26, 1919, plaintiff responded, saying:
“Your letter offering me your N. W. 3-21-35, Kearny County, Kans., for $1000.00 cash, received. I accept your offer. (Signed)
“P. S. I am enclosing you my personal check for $50.00 which you can receive if you wish as a first payment on the land. It would please me to have the deal closed through the Peoples State Bank of Garden City, Kans.”
The fifty-dollar check was received and retained by the defendant, and on June 30, 1919, he executed a deed to the land and forwarded it to the Peoples State Bank in Garden City, Kan., as he had been requested to do. That bank called the plaintiff’s attention to the receipt of the papers, and as there was no abstract among them he wrote defendant on July 2, 1919, asking defendant to forward an abstract showing that he owned the land and had the right to convey it. Having received no reply to that letter plaintiff wrote a second one on July 10, urging the defendant to send the abstract. In response to this letter a banker of Anamosa, Iowa, acting for the defendant, forwarded the abstract to the Peoples States Bank and in the letter stated that defendant is a farmer and did not understand that an abstract was necessary to close the deal. The abstract was handed to plaintiff, and discovering that it had not been brought down to date he had that done and afterwards placed it in the hands of an examiner, who found defects in the record of the title, one of which was that it failed to show a patent from the United States. On July 22, 1919, the Iowa banker, still acting for defendant, wrote to the Garden City bank in regard to closing the transaction, saying that it was supposed to be a cash deal, and that the defendant might decide to withdraw the land if he did not get his money at once. In reply the depository bank in Garden City wrote that the transaction was going forward as rapidly as possible, that plaintiff had to have the abstract brought down to date, had just got it back and handed it to his attorney for examination. On July 25, 1919, plaintiff wrote to defendant to the same effect, calling attention to the absence of the patent and asking defendant to hunt for it among his papers and let him know as quickly as possible if it could be found. It was not found, and after hearing from defendant, plaintiff on August 17, 1919, wrote again saying he had sent to Washington for the patent and hoped to receive it and complete the transaction in a few days. On August 7, 1919, the Iowa banker sent the following letter to the Peoples State Bank:
“Return at once the collection, number 60366, Ely sent you June 30th, for $950.00. We have written you once before to insist on immediate payment, and now we want this returned. We are registering this for a purpose and do not want this matter delayed. There has been two months given on a cash deal and now Mr. Joslin lias a chance to sell and get his money at once.”
In reply to this request the Peoples State Bank responded that if they would send the postage and a small charge for attending to the business, the papers would be returned. In that letter they added that plaintiff had done all he could to hurry up the transaction, that he had to obtain a copy of the patent and make corrections in the abstract, something which defendant should have done, and further, that the instrument that had been forwarded was a special instead of a general-warranty deed. Plaintiff discovered about this time that the instrument which had been sent and held by the bank did not contain covenants of general warranty. The Iowa banker wrote in reply that the defendant did not agree to clear the title of defects, that plaintiff was supposed to have the money ready as soon as the deed was forwarded, and that no reason was'seen for the objections made to the abstract of title unless it was the lack of a patent, and that patents could be gotten any time for forty cents. After the return of the papers, on August 12, 1919, the present action was commenced.
The facts stated, about which there is no substantial dispute, show a breach of the contract by the defendant. It devolved on the defendant to hold and give plaintiff a good title to the land which he contracted to convey. In every contract for the sale of land there is an implied warranty by the vendor that he has a good title unless such warranty be expressly excluded by the terms of the contract. (Durham v. Hadley, 47 Kan. 73, 27 Pac. 105.) Under our system of registration, the source and validity of title are shown by the records. According to general usage, evidence of title is an abstract of the record and ordinarily is furnished by the vendor. While the contract contained no express requirement that an abstract be furnished, the defendant evidently thought it incumbent upon him under the contract to furnish evidence of the condition of his title and of his right to convey, as he did send an abstract to the depository as evidence of his title. That was his interpretation of the contract and of his obligation under it. After acquiescing in the theory that he was required to furnish evidence of a right to convey a good title and his-action in attempting to comply with the requirement, it is too late to make the contention that he was under no obligation to furnish evidence of his right to convey. The abstract he did furnish showed a gap in the title, and some other defects. It had not been brought down to date, and the record failed to show a patent from the United States. Upon receipt of the abstract plaintiff proceeded at once to have it completed so as to show the condi tion of the title, a task which defendant had assumed to perform, and as soon as it was completed plaintiff handed it to an attorney for examination. The investigation as to the title was conducted with reasonable dispatch and some defects were found. Plaintiff made prompt inquiry of defendant as to the missing patent, and as defendant could not find it plaintiff procured a copy of the patent, and in that way completed the evidence of title. There were several weeks of delay, but, as will be seen, the deed was not sent to the bank until June 30, and the abstract not until the middle of July. The delay, it is disclosed, was occasioned by the failure of defendant to make the records show that he had the title which he contracted to convey. While it was to be what is called a cash sale there is nothing in the evidence tending to show unnecessary delay by the plaintiff, but on the contrary it does show that the delay resulted from the default of the defendant to do that which he attempted to do, that is, to show that he had a marketable title to the land.
He also failed in his duty in respect to the deed executed and sent to the depository. When plaintiff came to inspect it, it proved to be a deed of special warranty. While the form of the deed to be executed was not stated in the contract, one of general warranty was required to be given. It has been decided that “in the absence .of express stipulation covering the subject a deed with the usual covenants of warranty is implied.” (Dewey v. Hines, 87 Kan. 834, 126 Pac. 1093.)
There is a contention that defendant was not in default because the place of payment was at the residence of defendant in Iowa, and tender of payment had not been made at that place, but by an arrangement between the parties payment was to be made, and the transaction closed at the Garden City bank. In his acceptance of defendant’s offer, plaintiff suggested that bank as the place of payment, and defendant accepted the suggestion when he forwarded the papers to that bank with instructions to deliver the deed when the balance of the consideration was paid.
There is another contention that the action was brought by plaintiff before there was a default; that defendant was not placed in default until the money was either sent to the defendant at his residence in Iowa or tendered to the Garden City bank, and that neither was done. The action was not brought until the withdrawal letter of the defendant had been received by the Garden City bank. The purport of the letter was a refusal of the defendant to go farther in the transaction. That purpose was made plain in the statement, “There has been two months given on a cash deal, and now Mr. Joslin has a chance to sell and get his money at once.” This was not only a recall of the deed but a statement that it was his intention to dispose of the property to another. It amounted to a repudiation of the contract by defendant and at a time when the plaintiff was not in default. Under the circumstances a tender of the money then would have been useless, as the defendant, by words and conduct, had indicated that he was unwilling to perform. It has been decided that “where one party by his acts renders a tender useless and foolish, the other party is not required to make the tender.” (Chinn v. Bretches, 42 Kan. 316, syl. ¶ 2, 22 Pac., 426. See, also, Railroad Co. v. Comm’rs of Chase Co., 49 Kan. 399, 30 Pac. 456; Piazzek v. Harman, 79 Kan. 855, 98 Pac. 771; Niquette v. Green, 81 Kan. 569, 106 Pac. 270.)
The claim that plaintiff had not acted in good faith is not supported by the evidence, and the judgment of the trial court implies that it was found to be without merit. The excuses given for defendant’s default are deemed to be insufficient, and the conclusion of the court that plaintiff was entitled to specific performance must be upheld.
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The opinion of the court was delivered by
Dawson, J.:
These were taxpayers’ suits to enjoin the officers of the city of Wichita from making assessments on plaintiffs’ properties to pay for special improvements.
The defendants move to dismiss because the abstracts are defective. They do not contain the pleadings nor any abridgment of the pleadings. No transcript of the evidence was provided, and the evidence set out is merely statements from the memory of counsel who participated in the trial; and the accuracy of these statements is challenged.
However, the want of a transcript and consequent want of an abstract of the evidence do not always require a dismissal; the want of these merely limits the scope of the appellate review. (Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645.) Here the appellants set out the trial court’s findings of fact. Now if the appellants conceded the correctness of these findings and could show that a different judgment should have been entered thereon, we would have something to review which would render the want of the pleadings, want of a transcript, and want of an abstract or defective abstract immaterial. But we find no suoh error specified, and while we are reluctant to allow the motion to dismiss, it is diffi cult to get a hold, of something which we can properly discuss and review.
These appellant taxpayers should be advised that the supreme court must assume that the trial court’s findings of fact are correct, when there is some substantial evidence to support them. (Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.) What was said in Bailey v. City of Wichita, 108 Kan. 282, 285, 194 Pac. 928, concerning the “Daily Record” was based upon the assumption that its insufficiency as a newspaper was not in dispute (108 Kan. 854), but here the trial court’s finding clears up its status:
Finding of Fact No. 28.
“All ordinances, resolutions, proceedings, etc., in relation to this pavement were printed in The Daily Record.
“The Daily Record is published every day except Sunday and printed in the City of Wichita. . . .
“The City of Wichita advertised for bids in 1917 for an official paper in which to publish the ordinances and other proceedings which the City was required to publish. The Daily Record was the only paper which bid. The other papers failed to put in any bid, and The Daily Record was thereupon designated by the Board of Commissioners of the City of Wichita as the official paper of the City of Wichita and since said time has continued to be the official paper of the City of Wichita.
“In 1915, Judge Thomas C. Wilson, Judge of Division Number One of the District Court of Sedgwick County, Kansas, designated The Wichita Law & Mercantile Report, the predecessor of The Daily Record, as the official paper for District Court publications.
“The Daily Record was established in 1888 as The Wichita Law & Mercantile Report. The name was changed to The Daily Legal News in 1916 and to The Daily Record a few months later.”
Conclusion of Law, No. 6.
“Under Section 1411' of the General Statutes of 1915, the newspaper in which the ordinances of the City of Wichita are required to be published need not be a newspaper of general circulation in the City of Wichita or Sedgwick County, Kansas. The Daily Record is a proper paper in which to publish the ordinances and resolutions.”
(See, also, Gen. Stat. 1915, §§ 1412, 6001, 6002; Kansas City v. Overton, 68 Kan. 560, 75 Pac. 549.)
The next topic discussed in the Buckwalter brief relates to alleged fraud and dishonesty on the part of certain contractors and city officials in the letting and division of the concrete work and asphaltic work of the special improvements. But the trial court’s finding recites:
“46. There was no fraud, conspiracy, connivance, oppression or dishonesty on the part of any of the officers, agents or employees of the City of Wichita in the letting of the contract for or in the construction of the Larimer Avenue improvement and the officials and employees of the City of Wichita in constructing said improvement acted iri good faith.”
That finding closes all controversy on this point. (Bayer v. Cockerill, 3 Kan. 282, syl. ¶ 6; Farney v. Hauser, 109 Kan. 75, syl. ¶ 7, 198 Pac. 178.)
In the Bailey case, No. 24,130, where the defective appeal similarly limits our opportunity for reviewing the matters complained of, we note a complaint because of the trial court’s refusal to make certain requested findings of fact, but as we do not know what the issues were and there is no transcript of the evidence, nor unchallenged abstract of its contents, we cannot say whether such findings were material to a correct determination of the cause, nor whether the evidence would have justified such findings.
Fault is found with the items charged for “overhead,” or incidental expenses. We cannot say that these are unreasonable, and it has already been decided that a reasonable charge for such necessary expenditures can properly be included in the cost of the improvement. (Bailey v. City of Wichita, supra.)
Among the many grievances urged by plaintiffs in case No. 24,130, there is one which is worthy of particular attention. Certain lots of plaintiffs were subjected to special assessments for these improvements which aggregated more than the market value óf the property.
The trial court’s finding No. 26, abridged, shows:
Lot "Reserve C.”
Assessed value ....................••............................. $1,200.00
Market value ................................................... 800.00
Total of special assessments...................................... 1,197.73
Lot "99.”
Assessed value .................................................. $390.00
Market value .................................................... 300.00
Total of special assessments ...................................... 368.17
But the trial court also found:
“The evidence does not show that the valuation placed by the appraisers on Reserve ‘C’ and Lot 99 were out of proportion to the valuation placed upon the other lots which were assessed for the Central Avenue improvement. The presumption, therefore, is that the appraised values of all the property charged with that improvement were uniform. The owners of said property objected to the assessments against it at the time fixed for complaints by the board of commissioners, on the ground that the assessment would confiscate it but the objection was overruled by the board of commissioners. With the assessments against sai'd property unpaid, it is practically worthless. This property could not be sold for as much immediately after the pavement was completed as it could have been sold for before the pavement was ordered constructed.”
This discloses a serious predicament for these lot owners and taxpayers. But while such a result is to be avoided by city officials wherever possible, and if such result can be traced to their willful injustice, oppression, or sheer disregard of property rights, the strong hand of a court of equity'would promptly reach out and set it at naught, and do it, too, with more concern for righteousness than for logic (Norwood v. Baker, 172 U. S. 269, and Rose’s Notes thereto in 43 L. Ed. 443 et seq.; 28 Cyc. 1161), yet where the special assessments are fairly made, and made according to equitable principles, and pursuant to statutory authority, the fact that the proportionate cost of the improvement is greater than the property will readily sell for on the current market does not make a case for the interference of a court of equity. In Louisville & N. R. R. Co. v. Barber Asphalt Co., 197 U. S. 430, 49 L. Ed. 819, the supreme court said:
“There is a look of logic when it is said that special assessments are founded on special benefits, and that a law which makes it possible to assess beyond the amount of the special benefit attempts to rise above its source. But that mode of argument assumes an exactness in the premises which does not exist. The foundation of this familiar form of taxation is a question of theory. The amount of benefit which an improvement will confer upon particular land — indeed, whether it is a benefit at all — is a matter of forecast and estimate. In its general aspects, at least, it is peculiarly a thing to be decided by those who make the law. . . .
“A statute like the present manifestly might lead to the assessment of a particular lot for a sum larger than the value of the benefits to that lot. The whole cost of the improvement is distributed in proportion to area, and a particular area might receive no benefits at all, at least if its present and probable use be taken into account. If that possibility does not invalidate the act, it would be surprising if the corresponding fact should invalidate an assessment. Upholding the act as embodying a principle generally fair and doing as nearly equal justice as can be expected seems to import that if a particular case of hardship arises under it in its natural and ordinary application, that hardship must be borne as one of the imperfections of human things.” (pp. 821, 822.)
And so here. There was nothing arbitrary, irregular, or unusual in the proceedings leading up to the construction of the special improvements for which these special assessments were levied; and it cannot be said that the statute under which they were constructed is not fairly adapted to secure approximate justice, since it takes into account the proportionate frontage,-area, location, and probable benefits to the various properties chargeable with the cost of the improvement.
A patient examination of the imperfect records presented in these cases discloses nothing which would justify our disturbance of the judgments, and they are therefore affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
Plaintiff seeks to compel the defendant to reestablish and maintain a rate of thirty-five cents a thousand for gas .delivered by it to distributing companies operating in a number of cities in the eastern part of the state. The defendant has filed its return and answer to the petition of the plaintiff. To that return and answer the plaintiff has filed a combined reply and demurrer. The cause is presented on the demurrer to the answer. '
The facts disclosed by the pleadings, so far as necessary to state them for the consideration of the matters presented, are as follows : The defendant is producing gas in Oklahoma and Kansas and transmitting it from Oklahoma through Kansas and into Missouri and is supplying towns and cities in Oklahoma,’ Kansas, and Missouri with natural gas. The defendant does not furnish gas to the consumers; it sells gas to the distributing companies in various cities, and these companies deliver the gas to the consumers. The pipe lines conveying the gas are continuous from the wells to the place of consumption. The rate, fixed by order of the federal court and approved by the public utilities commission, has been thirty-five cents per thousand cubic feet of gas to companies distributing and selling gas in various cities in this state. That was the legal rate. On April 1, 1922, defendant notified the various distributing companies that after the April 1, 1922, meter reading the rate charged would be forty cents per thousand cubic feet. Upon that notice being given, this action was commenced to compel the defendant to deliver gas to the distributing companies for thirty-five cents per thousand cubic feet.
The plaintiff argues—
“1. That the defendant is a public utility under the laws of Kansas, and that its business o'f selling natural gas, transported in interstate commerce, is subject to regulation by the Public Utilities Commission of the state of Kansas.
“2. That the business of selling natural gas by the defendant to the distributing companies at the gates of the cities served by said distributing companies is local and not national in character.
“3. That until congress asserts its jurisdiction over the subject and provides for the regulation of the sale of natural gas in. interstate commerce, the states may enact laws providing for the reasonable regulation of the business.”
The defendant contends that—
“The business of The Kansas Natural Gas Company is national in character and not subject to direct regulation by the state.”
The controversy revolves around this question: Does the state of Kansas have power to regulate the price at which gas shall be sold by the defendant to the distributing companies? It is admitted by all the parties that the business of the defendant in transporting natural gas is interstate commerce. In The State, ex rel., v. Flannelly, 96 Kan. 372, 152 Pac. 22, it was said:
“Assuming that the sale of natural gas produced in Oklahoma, from there transported into this state through pipe lines and here sold to consumers throughout the state is interstate commerce, it is not national in its nature, it does not admit of one uniform system of regulation, it is not that kind of interstate commerce which required exclusive legislation by congress, and until congress acts it is under the control of this state.” (Syl. fl 5.)
That decision was adhered to by this court in The State, ex rel., v. Gas Co., 100 Kan. 593, 165 Pac. 1111.
Congress has not attempted to regulate the production, transportation, or sale of natural gas. Many of the states have passed laws governing these inatters. The legislation by the states demonstrates that the sale of natural gas should be regulated. The regulations made are not uniform; they cannot be uniform. Regulation is necessary; congress has not regulated; the states must regulate. Under these circumstances regulation by the states does not violate the commerce clause of the constitution. Some other provision of the constitution may be violated, but that is an altogether different question.
In Public Utilities Comm. v. Landon, 249 U. S. 236, 245, the supreme court of the United States said:
“That the transportation of gas through pipe lines from one state to another is interstate commerce may not be doubted. Also, it is clear that as part of such commerce the receivers might sell and deliver gas so transported to local distributing companies free from unreasonable interference by the state. American Express Co. v. Iowa, 196 U. S. 133, 143; Oklahoma v. Kansas Natural Gas Co., 221 U. S. 229; Haskell v. Kansas Natural Gas Co., 224 U. S. 217. But in .no proper sense can it be said, under the facts here disclosed, that sale and delivery of gas to their customers at burner tips by the local companies operating under special franchises constituted any part of interstate commerce.”
In Penna. Gas Co. v. Pub. Service Comm., 252 U. S. 23, 28, the supreme court of the United States used this language:
“We think that the transmission and sale of natural gas produced in' one state, transported by means of pipe lines and directly furnished to consumers in another state, is interstate commerce within the principles of the cases already determined by this court. West v. Kansas Natural Gas. Co., 221 U. S. 229; Haskell v. Kansas Natural Gas Co., 224 U. S. 217; Western Union Telegraph Co. v. Foster, 247 U. S. 105. This case differs from Public Utilities Commission v. Landon, 249 U. S. 236, wherein we dealt with the piping of natural gas from one state to another, and its sale to independent local gas companies in the receiving state, and held that the retailing of gas by the local companies to their consumers was intrastate commerce and not a continuation of interstate commerce, although the mains of the local companies receiving and distributing the gas to local consumers were connected permanently with those of the transmitting company. Under the circumstances set forth in that case we held that the interstate movement ended when the gas passed into the local mains; that the rates to be charged by the local companies had but an indirect effect upon interstate commerce and, therefore, the matter was subject to local regulation.”
In the last case, gas was produced in Pennsylvania, was transported through pipe lines to Jamestown, N. Y., and there was sold direct to the consumer by the producing company. There was no intervening distributing company. That case involved the validity of an order made by the public service commission of New York regulating the rates at which the Pennsylvania Gas Company should furnish gas to its customers in the city of Jamestown. The headnote to the- opinion readsi:
“The transmission and sale of natural gas, produced in one state and transported and furnished directly to consumers in a city of another state by means of pipe lines from the source of supply in part laid in the city streets, is interstate commerce; but, in the absence of any contrary regulation by congress, is subject to local regulation of rates.”
The only difference between the present case and the Pennsylvania Gas Company case is that here the gas is sold to distributing companies who in turn sell it to the consumer, while in the Pennsylvania Gas Company case, the gas was sold directly to the consumer. So far as the Kansas Natural Gas Company is concerned, the distributing companies in this state may be considered the consumers of the gas sold. If that is correct, there is no difference between the present case and the Pennsylvania Gas Company case.
Attention is directed to a very recent opinion by the Honorable John C. Pollock, judge of the United States district court for the district of Kansas, in Central Trust Company of New York v. The Central Light, Heat and Power Company, in which that court held that the business of the Kansas Natural Gas Company in selling gas to the several distributing companies within the state of Kansas is interstate commerce and is riot subject to the control of the state through the public utilities commission. That opinion is largely based on Public Utilities Comm. v. Landon, 249 U. S. 236, and Penna. Gas Co. v. Pub. Service Comm., 252 U. S. 23.
This court reaches a conclusion different from that of the United States district court, based on the same cases and on the facts that congress has not attempted to regulate the sale of natural gas and that the regulation of its sale is necessary and cannot be uniform or natiorial in its character. Until congress does act in the matter the state has power to regulate the sale of natural gas in this state by the Kansas Natural Gas Company.
The demurrer- of the plaintiff to the answer of the defendant is sustained; and a peremptory writ of mandamus is allowed, commanding the defendant to reestablish and maintain a rate of thirty- five cents a thousand for gas delivered by it to the distributing companies operating in the cities of this state until a different rate is fixed by order of the public utilities commission. | [
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The opinion of the court was delivered by
West, J.:
An opinion in this case was filed June 11, 1921, but in view of the motion for rehearing it was not officially reported. After considering the motion and again going over the entire matter the court has reached the final conclusion indicated below.
The action was brought in 1916 for injuries occurring in October, 1915, by reason of a defect in a highway in Wyandotte county, known as the Leavenworth road, against the county and township under section 237 of the Laws of 1887, being section 722 of the General Statutes of 1915. The township moved to make the petition more definite by stating whether or not the highway was a county or township road, which motion was overruled. Then the township demurred to the petition, which demurrer was overruled, and thereafter an answer was filed alleging that the accident was on a county road over which the township had no control or authority. An objection to testimony under the petition was overruled. An instructed verdict was asked for and denied.
The jury were charged that the petition alleged the township had caused and suffered a large hole to be and remain at a point about six hundred feet west of the intersection of the Kansas City Western Railway Company’s line and the Leavenworth rock road, and had failed and neglected to erect any barrier or other guards around the same, and had failed and neglected to warn persons traveling upon the road against the-defect, which was well known to the trustees of the township, who had actual notice thereof more than five days before the injury; that under the laws of this state any person who shall, without contributing negligence on his part, sustain damages by reason of a defect in a road within a township may recover such damages from such township, when the township trustee shall have had notice of such defective condition for at least five days before the injury. The township objected to this instruction. The plain-' tiff recovered. A motion for a new trial was overruled, and the township appeals.
Counsel for the township insists that the liability, if any, rests upon the county and calls attention to chapter 276 of the Laws of 1899, entitled:
“An act empowering the county of Wyandotte to improve and maintain certain public highways and to levy and collect taxes for that purpose.”
The act authorizes and empowers the board to improve and maintain certain roads, including the one in question, and provides that whenever these highways or any part of them shall have been properly graded and prepared for macadamizing by township boards, road overseers, or by private parties,-it shall then become the duty of the board of county commissioners to cause the same, or such parts or sections thereof as shall have been graded and prepared, to be macadamized, and provides that to defray the expense thereof a county tax not exceeding two mills on the dollal shall be levied and the funds derived therefrom set aside and used exclusively for this purpose.
In 1874, the legislature enacted chapter 108, which until after the compilation of 1885 remained a general statute in relation to roads and highways. Beginning with section 16 of that act it appears that an incorporated city of more than six hundred inhabitants should constitute a road district. Section 27 provided that if at any time a highway should be obstructed or become impassable, or any bridge should be impaired so as to make it unsafe—
“It shall be the duty of the overseer of the district in which such obstruction, impassable road or impaired bridge may be situated, to cause such obstruction to be removed, or such road or bridge to be repaired forthwith.
In the compilation of 1885 this statute was included with chapter 150 of the Laws of 1883, requiring road overseers to remove all cockle burrs and other obnoxious weeds and to prohibit the plowing up of the public highway for the purpose of scouring plows except under the direction of the overseer. No further act of a general nature was passed until 1887, when chapter 214 was enacted providing for the maintenance of county roads by the county commissioners. At this session was also passe'd chapter 237, the only statute ever enacted by the legislature of this state providing for recovery of damages for defective highways. The legislature of 1901 enacted chapter 296, amending section 12 of the act of 1874, and required each road overseer to open or cause to be opened all state and county roads, “and the overseer shall keep the same in repair, and remove or cause to be removed all obstructions that may be found therein.” He was also authorized to enter upon any uncultivated land and use materials, dig ditches necessary for such keeping in repairs, all claims to be allowed and paid by the county board. Chapter 299 authorized the board of Wyandotte county to improve and maintain the Muncie boulevard. Chapter 300 amended chapter 276 of the Laws of 1899, and authorized the board to improve and maintain the Reidy road, the Leavenworth road, the Kaw Valley road and certain other roads named therein, repealing section 1 of the act of 1899. Chapter 301 authorized a certain other road, the act being made supplemental to chapter 276 of the Laws of 1899, and section 2 made it the duty of the county commissioners to expend in the improvement or macadamizing and maintenance such proportion of the two-mill tax levy authorized by chapter 276 of the Laws of 1899, as should be equal to the amount of such levy expended and used by the board for. the improvement and maintenance of other roads-in the county under such act and acts supplemental thereto. Of a similar character were chapter 420 of the Laws of 1903, chapter 421, and chapter 422.
The legislature of 1905 passed a general act in relation to public highways, being chapter 362. This made the township board commissioners of highways of their respective townships:
“And all roads shall be under the direct control of the township commissioners of roads and highways, except incorporated cities of more than six hundred inhabitants. . . .”
Section 4 provided that such commissioners should have entire control and general supervision of all roads and highways in their respective townships, and all tools and implements, and road machinery together with all materials for the construction of culverts and bridges. Chapter 375 was like the act of 1899, as were also chapters 376 and 377. Chapter 378 authorized the grading, curbing and macadamizing of certain other roads to be let on bids and paid for by a tax levied by the board. Chapter 379 gave similar authority with reference to Eighteenth street and required the board to expend therefor the proper proportion of the levy provided for by the act of 1899. Section 5 provided—
“That to defray the cost of macadamizing and maintaining county roads, the board of county commissioners are hereby authorized and empowered to levy and collect annually, on all of the taxable property of said county, a tax not exceeding two mills on the dollar, and the funds provided from such taxation shall be set aside and used exclusively for the improvement of county roads, and for no other purpose.”
This appears therefore to have been a general authority and requirement touching macadamizing and maintaining of all county roads in Wyandotte county. Chapter 292 of the Laws of '1907 amended section 1 of chapter 362 of the Laws of 1905, and made' members of the township board commissioners of roads and highways of their respective townships, and provided that “all roads shall be under the direct control of the township commissioners of roads and highways, except incorporated cities, . . .” Chapter 294 authorized the commissioners of roads and highways to divide their respective townships, further amending the act of 1905. Chapter 299 amended section 1 of chapter 276 of the Laws of 1899, naming certain roads, not including the Leavenworth road by name. Chapter 300, supplemental to the act of 1899, authprized the board to improve, macadamize and maintain certain other named roads. Like wise, chapter 301, the costs to be defrayed by an annual tax not exceeding two mills, and chapter 302, touching Eighteenth street, required the expenditure of the proper proportion of the tax levied by the act of 1899. Substantially similar were chapters 305 to chapter 315, inclusive.
The legislature of 1909 enacted chapter 197, requiring township boards to designate such roads as in their judgment should be known as drag roads, and to divide such roads into sections as would best carry out the purpose and provisions of the act. Also, chapter 198, relating to roads and highways, creating the office of engineer of highways and bridges, amending various provisions of the acts of 1905 and 1907, relating to the commissioners of highways, and the road-drag act of 1907, and repealing chapters 292 and 294, Laws of 1907, touching the duties of township road commissioners. This act required the county engineer to classify the roads of his county, designating them as county, township and local roads, according to their importance and the amount of travel—
“And he shall see that the roads so classified be kept and maintained in condition in proportion to importance and amount of travel. The township highway commission shall classify the roads in their respective townships; . . .” (§2.)
Section 4 amended section 1 of chapter 362 of the Laws of 1905, and provided that the township board—
“Shall be and the same are hereby made commissioners of roads and highways of their respective townships, and all roads outside of incorporated cities shall be under the control of said commissioners of roads and highways, subject to the authority of the county engineer. . . .”
Section 5 provided that all taxes assessed for the purpose of maintaining public roads and highways should be paid in cash and collected as provided for in relation to other taxes, and used exclusively for road purposes.
Section 6:
“The said commissioners of roads and 'highways shall have control and general supervision of all roads and highways in their respective townships, except that in counties having a county engineer such control shall be subject to the authority of the county engineer, as provided for in this act.”
Section 9:
“For the purpose of carrying out the provisions of this act the commissioners of roads and highways shall recommend to the county commissioners of each county in this state, ... a levy of not more than;one mill on the dollar . . . and it shall be the duty of the county clerk to place such levy on the tax-rolls of said county: Provided, That at least seventy-five per cent of all moneys collected from the taxable property in each road district, including cities of the third class, shall be used to improve the roads within such district,”
Chapter 201 of the Laws of 1909, providing for the maintenance of country roads, authorized the county commissioners upon a certain petition to cause a country road to be improved as prayed for, such petition to be signed by sixty per cent of the landowners along the line of any regularly laid out road. Section 10 provided that all bridges and culverts costing more than $200 should be built by the county and paid for from the general fund or bridge fund.
The legislature of 1911 enacted chapter 248, another general statute of fifty-six sections, covering the subject of roads and highways, and repealing various former enactments. Section 53 provided that no provision of that act should be construed to repeal or supersede any special act then in force in any county in this state. Chapter 254 authorized the county commissioners of any county having ninety thousand inhabitants or over, where county roads were macadamized out of funds raised by direct tax levy, to grade and macadamize roads leading to public buildings and connecting rock roads already constructed, the cost to be defrayed out of the macadam fund and not to exceed three thousand dollars a year.
Section 3:
“This act shall not be construed as repealing any laws now in existence except in so far as it directly conflicts with the provisions of this act, but it shall be supplementary to said chapter 276 of the Laws of Kansas for the year 1899 and all acts amendatory and supplemental thereto.”
Chapter 255 amended section 3 of the act of 1899, and provided that the macadamizing of roads might be done in sections from time to time as there might be funds provided for that purpose, etc. Section 1, chapter 248, defined mail routes as “the free rural delivery mail routes within a municipal township,” and township roads, as “all roads within a township other than free rural delivery mail routes,” and county roads:
“All roads designated as such by the board of county commissioners of a county connecting cities and market centers, whether both such cities or centers are within the county, or one is within and the other without the county.”
Section 18 classified all roads as “state roads,” “county roads,” “mail routes,” and “township roads.”
“The ‘county roads’ shall be all roads designated as such by the board of county commissioners of a county. . : . Free delivery mail routes shall be known as ‘mail routes,’ and all other public highways within a township are ‘township roads.’ All county and state roads shall be maintained at the expense of the county, and all 'mail routes and township roads where they do not coincide with county and state roads at the expense of the township in which they are situated: Provided, That all roads designated as county roads under the provisions of chapter 198 of the Session Laws of 1909 and established as such at the time of taking effect of this act shall be and remain county roads and shall be' maintained under the provisions of this act.”
Section 19:
“All mail routes and township roads shall be under the control of said board of commissioners of highways.”
Section 23:
“That the highway commissioner shall have charge of the mail routes, township roads and township bridges of their respective townships, and it shall be their duty to keep the same in repair, and to improve them so far as practicable.”
Section 32 provided that the taxes assessed for the purpose of constructing and maintaining public roads should be paid in cash, and the county treasurer should pay that proportion of the same which should be used upon mail routes and township roads or upon city streets to the treasurer of the township or city from which said taxes were collected, to be used exclusively for such road purposes. Section 40 made it the duty of the township trustee to remove all obstructions at least once a year, at such times as the county commissioners might direct, from all public roads and highways in his township.
Section 41:
“That if at any time any highway shall be obstructed or become impassable, or any bridge shall be impaired so as to be unsafe, it shall bo the duty of the township trustee of the township in which such obstruction, impassable road or impaired bridge may be situated, to cause such obstruction to be removed or such road or bridge to be repaired forthwith.”
In 1913, the legislature enacted chapter 262, supplemental and amendatory to chapter 276 of the Laws of 1899, requiring the county board to expend therefor the proportion of the taxes authorized by the act of 1899.
The legislature of 1915 passed chapter 186, similar to those already mentioned, made the act supplemental to that of 1899; also, chapter 290 amending section 19 of chapter 249 of the act of 1911, making the township board the auditing board for their respective townships. “All mail routes and township roads shall be under the control of said board of commissioners of highways.”
Counties and townships are mere creatures of the legislature. (Constitution, art. 9; Gen. Stat. 1915, ch. 25, art. 2, § 2562, ch. 117, art. 1.) The legislature has the power to abolish counties and county organizations. (Division of Howard Co., 15 Kan. 195.) The legislature has plenary power over roads and highways. It may establish a state road and cast the cost on the county in which the road lies without any vote of the inhabitants. (The State, ex rel., v. Comm’rs of Shawnee Co., 28 Kan. 431.) It was contended in that case that the legislature had no authority to establish a state ro'ad and compel Shawnee county to pay for it, but it was said by Brewer, J., that this was done in forty-two instances by chapter 70 of the Laws of 1861. It was also said that it is not like compelling a county to take stock in a railroad corporation; while a road is open to the use of all citizens, it is yet of special value and benefit to the county upon which the burden of its cost is cast.
“It is not like an attempt to tax the citizens of Topeka with the cost of improving the streets of Lawrence. It simply casts upon the counties of Shawnee and Jefferson the cost of roads wholly within their territorial limits, and it is making each county bear the burden of public improvements within such limits. . . .We know of no reason why the legislature might not pass an act declaring all highways state roads, and place the management and control of them in commissions appointed directly by the state; and yet if such an act were passed, the special value and benefit of each road to the community in which it is located would be unchanged.” (pp. 433, 434.)
Speaking of counties it was said:
“They are political organizations, whose powers and duties are within the control of the legislature. That body defines the limits of their powers, and prescribes what they must and what they must not do. It may prescribe the amount of taxes which each shall levy, and to what public purpose each shall devote the moneys thus obtained. It may require one county to build a certain number of bridges at certain specified places, and of a particular size and quality. It may require another to open roads in given localities; and another to build a courthouse and to levy a tax to a prescribed amount for the purpose of paying therefor. In short, as a general proposition, all the powers and duties of a county are subject to legislative control; and provided the purpose be a public one, and a special benefit to the county, it may direct the appropriation of the county funds therefor in such manner and to such amount as it shall deem best.” (p. 434.)
In Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207, holding that a city may be required by legislative act to establish parks and boulevards and pay the expenses therefor, it was said that—
“Whatever view may be taken of those concerns of cities which are mainly private or proprietary in their nature, in matters in which the state has an interest, and which, as we have seen, are undoubtedly subject to the sovereign control of the state, the state may interfere at will with the local bodies, and may compel the local community to tax itself in order to carry out the obligations imposed upon it by the state.” (p. 374.)
The State v. Lawrence, 79 Kan. 234, 257, 100 Pac. 485, quoted from the case of In re Dalton, 61 Kan. 257, 59 Pac. 336:
“ ‘Indeed, everything relating to the management of counties, cities and townships not defined and limited by the constitution, may be taken away by the state acting through its legislature, and as to these political divisions and their agents the legislature has the same power that it possesses over state officers.’ (p. 264.)” (p. 257.)
Further:
“The state is the sovereign power, and cities, towns and all other municipalities are its subsidiary agencies for governmental purposes, ... It may well be that the state has the power, if necessity should arise, to require a city to erect a bridge or to construct a road, or to assume a part of the burden of the cost thereof, and that the form of the legislative act would not affect its validity. ... It is true that streets, roads and bridges are subjects of public interest and of state-wide concern, but more truly speaking.they are local in character.” (pp. 257, 258.)
In City of Emporia v. Griffith, 86 Kan. 976, 122 Pac. 1053, it was held that a county has the right to tax for the purpose of maintaining county roads under the act of 1911, which is to be expended under the direction of county officers, and that the officers of a city within such county are not entitled to the possession of any portion of the fund and have no control thereof. Near the conclusion of the opinion it was said: '
“It is competent for the legislature to give the control of the highways of the county, including the streets of cities, to any of its subordinate agencies. It may exercise the power directly or confer it upon county officers, or it may allow the officers of cities and townships to share in the control.” (p. 980. See, also, Kansas City v. Stewart, 90 Kan. 846, 136 Pac. 241; Jefferson County v. Drainage District, 97 Kan. 302, 155 Pac. 54; Washburn v. Shawnee County, 103 Kan. 169, 172 Pac. 997; Albright v. Douglas County, 108 Kan. 184, 194 Pac. 913.)
The foregoing sufficiently shows that the legislature is not restricted, but in a general way is free to provide much as it sees fit respecting roads and highways. Of course, it can take certain municipalities and roads out from the general category, and can impose damages for defects on whatever quasi municipality it deems proper. Let us examine the act of 1887 and see what the legislative intent evidenced thereby is.
“An act making counties and townships liable for defects in bridges, culverts and highways in certain cases.”
Section 1:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or. township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.”
It must be conceded that the wording is such that interpretation is necessary. It is clear, however, that the subject indicated by the title is the liability of counties and townships for defects in bridges, culverts and highways. It is equally clear that in case of county liability it is required that the chairman of the board must have had five days’ notice of the defect, and in case of township liability, the trustee must have had such notice. Also, that the damage is to be recovered from the “county or township wherein such defective bridge, culvert or highway is located.” Of course, if either were in a given township it would necessarily be within a county, The ambiguity comes from the language—
“As hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county; . . . and in other cases such recovery may be from the township. . .
The court holds that the intent was and the meaning is that in cases in which the township has no duty to keep in repair, or to maintain, no liability was to be attached, whatever the defect. Also, that while the duty under the road legislation rests generally on the township to keep the roads safe and in repair, the Wyandotte county legislation, in 1899 and since, evidences the manifest intent to take this Leavenworth road out from the operation of such general duty and consequent responsibility. The repeated provisions that the county should improve and maintain.mean that such improvement and maintenance were thereby removed from the burden of the township, and that being thus expressly relieved of the duty and burden, the township was by clear implication to be also relieved from liability for defects in a road over which it had no control and in respect to which it owed no duty. It seems unnatural that with the subject thus expressed in the title, and the purpose to permit damages to be recovered by those injured by highway defects, the lawmakers would wittingly have restricted recovery from a county to the single case of a bridge partially or wholly constructed by it. It appears to the court more reasonable and more in accord with the probabilities to construe the act as permitting recovery from the municipality which by subsequent legislation had been given the task of construction, maintenance and control. Otherwise, in this instance, the township, which neither constructed nor maintained the road, must respond in damages for a defect in a road which it was the duty of the county to construct and which it is its duty to maintain. There is something incongruous in the notion that the taxpayers of one township should be required to make an injured traveler whole when the entire county owed him the duty to maintain the highway and by natural, if not imperatively necessary implication, keep it safe for travel.
It is therefore held that the township is not liable, and the judgment is reversed and the cause remanded with directions to enter judgment for the defendant township.
In the companion cases, Nos. 22,142 and 22,143, against the county, demurrers to the petition were sustained. By reason of the foregoing this ruling is reversed, and those cases are remanded for further proceedings.
Johnston, C. J., and Justices Porter and Dawson concur in the result. | [
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The opinion of the court was delivered by
West, J.:
Weber owned some land in Cheyenne county on which was a mortgage of $1,000. He wanted to sell the land and employed Bagwell to find him a purchaser. Thomas L. Porter, at Alma, Neb., where Bagwell lived, had a piece of town property. The petition alleged that Bagwell offered to give the Alma property and $3,000 for the land, to which Weber agreed; that he went to Alma and executed a deed to his land, leaving the name of the grantee blank at Bagwell’s request, which deed was placed in the possession of Porter, to be held in escrow until plaintiff received from Bagwell a deed to the Alma property and $3,000; that at this same time Porter executed a deed for the Alma property which Bagwell delivered to the plaintiff “and persuaded him to place of record a deed for said residence property; but this plaintiff has never . . . been in possession thereof nor exercised any control or. ownership over said property. . . ;” that he.had not received the $3,000 nor delivered the deed to his land, but that Bagwell and Porter for the purpose of cheating him out of his property had recorded his deed, which was delivered to Bagwell without the plaintiff’s knowledge or consent; that for the further purpose of cheating him out of his property Bagwell had made to Porter a $1,500 mortgage on the land, which Porter had recorded.
The court found that plaintiff made a deed in blank and delivered it to Porter to be held in escrow until Bagwell should pay the $3,000, and then deliver it to Bagwell; that Porter and Bagwell fraudulently caused Bagwell’s name to be inserted as grantee and the deed to be recorded; that plaintiff did not get the $3,000, and that the delivery of the deed was unauthorized; also, that the Alma property had been reconveyed to Porter by the plaintiff; that a deed to certain Nebraska land was executed to plaintiff which should be redeeded to Bagwell, and the deed to the Kansas land should be canceled. No judgment was rendered against Porter. The defendant, Bagwell, and a subsequent grantee appeal.
It is insisted that there was no evidence to support the finding of fraud or of the alleged escrow agreement.
The plaintiff testified 'in substance, among other things, that there was an arrangement between him and Bagwell concerning a trade for his property in Cheyenne county.
“A. Well, he said he had everything ready, when I signed my deed over to him that I was to get this city property in Alma and my three thousand dollars. We was to go down and see this man that was to buy this McPherson county land that afternoon and close the deal.”
Further, that he made out his deed in blank in Mr. Hunt’s office, and Mr. Porter came in with his deed to the Alma property—
“A. And I drawed my deed out in blank and this was to be left with Mr. Porter, received this deed of mine in escrow as credit for his property, and was to be left there until we closed the deal down at Riverton that same day.
“Q. Did you get any conveyance there at that time, or any deed made for you to the Alma property? A. Yes, sir.
“Q. At the time that your deed was left there with Mr. Porter in Mr. Hunt’s office, you say that it was to be held by Mr. Porter until you and Mr. Bagwell could go to Riverton? A. Yes, sir. ...
“Q. You didn’t go down and get your three thousand dollars? A. No, sir. . . .
“Q. What did you do with the deed after you executed it, after you signed and acknowledged it? A. It was left in Mr. Hunt’s office.
“Q. Left where? A. In Mr. Hunt’s office with Mr. Porter.
“Q. What was the purpose in leaving it there? A. Well, as security until I got my end of the deal, I think.
“Q. It was to be left there, was it, until you got the Porter deed? . . .
“Q. After you had signed your name to that deed and it had been acknowledged, you turned the deed over to Bagwell, to give to Porter, didn’t you? A. Well, it was right on the bench or table there, lying on the table.
“Q. And Bagwell picked it up with your knowledge and consent? A. I don’t just remember.
“Q. You didn’t object to it? A. No. . . .
“Q. Did you just leave the deed on the table there and then Bagwell picked it up; is that the last you saw of it? A. I think it was.
“Q. And you didn’t have any other agreement than that you have spoken of? A. No, sir. . . .
“Q. What was the escrow to be; what were the terms of it? A. Well, there wasn’t any particular terms. It was to be left there till I got—
“Q. Who did you tell that to? A. It was understood between me and Bag-well.
“Q. You never told that to Porter? A. Well, he heard it, I think. . . .
“The court: Who was it that said that this deed would be held in escrow until you received your three thousand dollars? You said it was to be done, now who was it said that? A. I think it was Mr. Bagwell.
“The court: How did you come to give it to him any more than any one else? A. You mean give it to Mr. Porter?
“The court: Yes, that is what they have asked you. What was said to you? A. Well, the deal was supposed to be closed that day. I don’t know as anything in particular was said.
“The court: What was said along that line and by whom was it stated? A. Bagwell says, ‘We will leave this deed here with Mr. Porter until we get this other end of the deal straightened up.’ ”
Mr. Hunt testified that the conversation clearly indicated that Mr. Weber was to receive the property known as the Tom Porter old residence, and there were also indications that Mr. Weber was to receive some western land, to be deeded to him by another party in person.
“Q. Was anything said relative to having the deeds in escrow? A. Not at this time.
“Q. Had there been any previous conversation to that effect? A. Between myself and Mr. Bagwell there had been,”
Thomas L. Porter testified that the parties called him up and said they were at Mr. Hunt’s office and ready to close the deal; that he took his deed to his property made out to Mr. Weber. They had their abstract and he examined it and found the title in Mr. Weber, and they had the deed from Mr. Weber made out in blank.
“A. Mr. Bagwell entrusted me with the deed absolutely; and after dinner he and his wife came down and we went back down to my office. I had the note and mortgage in blank, and I said, ‘Your name will have to go into this deed’ and he came and inserted Bagwell’s name in the deed; and I supposed that Weber knew that Bagwell was getting the property; anyway, Bagwell’s name was put in the deed, and he signed, the note and mortgage to me for 11,500; and of course, I mailed the deed and mortgage to Cheyenne county for record immediately.”
He further testified that after supper Bagwell came over to see him and wanted to know what he had done with the deed and was told he had mailed it down for record.
“Q. Have you ever held the deed to the Cheyenne county land in escrow? A. No, sir.”
Mr. Bagwell testified that they called Mr. Porter to the office and he refused to deliver his deed to Hunt until he got the mortgage on the land. He then went to Mr. Hunt’s office and had the deed made out to the land. Mr. Weber delivered his deed to him and Mr. Porter delivered his deed to the Alma property to Mr. Weber.
“Q. Why was the deed to the Kansas land made in blank when it was made at Hunt’s office? A. Why, it was made with the protection of T. L. Porter, as he refused to give a deed to his property until he got the mortgage as surety.”
We have quoted the most significant evidence touching the alleged deposit of the deed with Mr. Porter in escrow and are unable to find any basis for the conclusion that such a delivery was made. The facts seem to be that at Mr. Hunt’s office a deed from Porter to Weber for the Alma property was delivered for which Bagwell made a $1,500 mortgage on the Kansas land owned by Weber, and in order •that the mortgage might be valid, Weber’s name was inserted as grantee in the deed so that the record would show clearly touching his mortgage to Porter, and it is also clear that Weber and Bagwell started to Riverton to close up the other deal to get the $3,000, and shortly returned; and afterwards Porter took a reconveyance of his property and satisfied the mortgage on the Kansas land, and that eliminated him from the transaction, so that the plaintiff did not even ask judgment against him. We find nothing to indicate that Porter and Bagwell connived together to deprive the plaintiff of his land or that Porter either accepted or violated any escrow touching the Weber deal.
Whatever the rights of the parties to the action may be, the petition and the judgment are based on the proposition that there was an escrow agreement which was violated by T. L. Porter. The prayer does not appear, so it is not known just what relief was sought, but the judgment directed that the deed from Weber to Bagwell for the Kansas land be canceled, and that Weber be required to convey to Bagwell the McPherson county, Nebraska, land. The only contention presented to us is that the finding and judgment touching the alleged escrow agreement 'and its violation were erroneous, and counsel’s contention in this respect we find to be correct.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith.
(Filed April 8, 1922.) | [
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The opinion of the court was delivered by
Johnston, C. J.:
This.was an action by Gilbert M. Venable, jr., to set aside a life lease of land given to Edwin H. Bradbury, and a - deed made by him to two children of Bradbury. The plaintiff also asked to have the title to the land quieted in him and for the construction of the deed given to plaintiff by his father. The action-resulted in a judgment setting aside the life lease and deed, from which defendants appeal.
The deed executed by Gilbert M. Venable, sr., to plaintiff was executed on September 28, 1888. It was in the ordinary form of general warranty except that it contained a provision that it was “expressly understood by the parties hereto that the party of the first part shall during his natural life have exclusive control and management of the real estate described, and may at any time sell and convey the same with the consent of the party of the second part, and it is further provided and expressly understood by and between the parties hereto, that if the party of the second part shall die without heirs begotten of his body, the real estate herein described shall all revert to the party of the first part, his children or their heirs if they be dead." Venable, sr., had two children, the plaintiff and a daughter, Ada, who married Edwin H. Bradbury. She died in 1899, leaving two children, Gilbert V. Bradbury and Dorothy Bradbury, who are named as defendants. Venable, sr., died in 1894, six years after the deed to his son was executed. During his lifetime he retained possession and control of the property, and his son being addicted to the excessive use of intoxicating liquor, and a spendthrift, led the father, it is contended, to limit the conveyance to a life estate only. That appears to have been the interpretation placed upon the deed by the son as well as his father, and also by the other parties concerned. From the death of his father in 1894 to 1901, the son undertook to control the land, but he was un able to make it yield enough to pay taxes and maintain the property. On March 1, 1901, he leased it to Bradbury for three years at a stipulated rental of twenty-five dollars per month and possession was taken by the lessee. This lease was renewed for two years longer, expiring in 1906, and there was also a third lease expiring 1909. The rentals were paid to the plaintiff, and Bradbury continued in the control and possession of the land up to the time of the execution of the instruments sought to be set aside in this action. In a letter written by an attorney in May, 1908, Bradbury was advised that the deed executed by Venable, sr., to his son conveyed to him a title in fee simple. In September, 1908, Bradbury entered into negotiations with plaintiff for the purchase of his interest in the land with the result that plaintiff executed the life lease of the land to Bradbury, and a deed in which his wife joined, conveying the title of the property to Bradbury’s children. The consideration for these instruments was the payment by Bradbury to plaintiff of sixty dollars on the first day of each month during the life of the plaintiff. The stipulated payments were made as they fell due from September, 1908, until about the time this action was begun in 1920. Sometime before the execution of the instruments the plaintiff obtained the opinion of an attorney as to the title or interest he held in the land, who advised him that he only held a life interest, and that the property would descend to the heirs as provided in the deed. Plaintiff alleged and contends that the life lease and deed were fraudulently obtained and were void for the reason that Bradbury had concealed from him the opinion given by his lawyer in 1908 with respect tó the title. His claim is that Bradbury took advantage of the confidential relations existing between them, and with the knowledge given him by the attorney as to his title, he had procured the transfers for a monthly annuity of sixty dollars when the property transferred was actually worth $20,000. Plaintiff had lived with Bradbury from 1894, when his father died, until 1899. He had been employed by Bradbury a short time in 1896, and again for a short period in 1906. Plaintiff drank heavily most of the time from 1900 to 1909, and often lost positions he had obtained because of his intemperate habits. In 1909, he gave up these habits and has been a total abstainer since that time. Friendly relations existed between plaintiff and Bradbury for twenty-five years, the period from the death of plaintiff’s father until this action was brought. It appears that he was in the employ of Bradbury in 1920, as a bookkeeper, and while rearranging the papers in a desk found and read the letter of Bradbury’s attorney written in May, 1908, expressing the opinion that the title to the land was in the plaintiff. He then left the 'defendant’s employment and instituted the action.
• The defendants contend that as plaintiff had for twenty-five years acquiesced in the view that he held only a life estate in the property, and did not question the rights of inheritance of Gilbert V. and Dorothy Bradbury in it, and also that he had sold his interest in it more than eleven years before challenging the transfers made, and further, that the-annuity to be paid him of $720 during his life, the expectancy being twenty-six years, and which represented an aggregate of $18,726, the actual cash value of the land, the ground relied on by plaintiff for relief did not warrant the cancellation of the lease and deed, nor afford any basis for equitable relief. As already indicated the ground for setting aside the lease and deed is the fact that Bradbury did not inform plaintiff as to the opinion of the lawyer .respecting the title given to defendant about three months before the execution of the instruments, and that with the information derived from the letter he dealt with the plaintiff on the theory that the extent of plaintiff’s interests was a life estate.- Did the withholding of the opinion expressed by Bradbury’s lawyer constitute such fraud as will justify a cancellation of the deed and lease? The opinion related only to a question of law, the legal effect of an instrument of conveyance. It was only an opinion and one which did not change the title of the plaintiff or affect his existing rights. It had no more effect than the legal opinion secured by plaintiff from another lawyer that he held only a life estate in the land. The effect of the .recitals in the deed was a debatable question of law upon which the opinions of the attorneys were given. Both opinions were based upon the recitals of the instrument, and these were equally available to both parties. That it was a doubtful^ question was shown by the fact that capable lawyers placed different interpretations upon the same instrument. As between the parties dealing with each other, an expression of opinion not amounting to a representation doe's not constitute actionable fraud. It has been said that—
“The vender cannot be held responsible where he merely expresses an opinion as to the legal effect of known facts and muniments of title or an opinion as to the validity of his title.” (12 R. C. L. 274.)
Here the opinion withheld was that of a stranger. It was not used to induce action, and the case is not like one where one party used a legal opinion to procure another to enter into a contract or to execute a conveyance. Everyone is presumed to know the law, his rights and the state of his own title to property. The plaintiff had fhe same means of knowledge of his rights and interest in the land that the defendant had, and had previously used the means employed by defendant of obtaining a legal opinion as to his interest in the land. It has been said:
“The presumption is, that every person is acquainted with his own rights, provided he has had a reasonable opportunity to know them. And nothing can be more liable to abuse than to permit a person to reclaim his property upon the mere pretense that at the time of parting with it he was ignorant of the law acting on his title.” (1 Story’s Equity Jurisprudence, 14th ed., 173.)
In a,case where there was more than silence, but representations by the grantee to the effect that the title of the grantor had been divested by legal proceedings, it was held:
“The means of information were equally open to both parties. The grantor also consulted an attorney at law concerning his title, and executed the deed supposing that he had no title. Held, that he was not entitled to recover for the alleged fraudulent representations.” (Cobb v. Wright, 43 Minn. 83, syl.)
(See, also, Robins v. Hope, 57 Cal. 493; Williams, etc. v. Beazley, 26 Ky. 578; Boddy v. Henry, 113 Iowa, 462; Boileau v. Records & Breen, 165 Iowa, 134; Du Moulin v. Board of Education, 124 N. Y. Supp. 901; Brown v. Lead & Zinc Mining Co., 194 Mo. 681.)
Plaintiff contends that if silence of defendant as to the opinion of his lawyer would not of itself operate to impeach the transaction, the confidential relationship existing between the parties made the withholding of the opinion an actionable fraud, which warranted the setting aside of the lease and deed. As has been -seen the only relationship between them was that of brothers-in-law. There being no blood relationship, the mere fact that the plaintiff lived in the family of defendant and was on friendly terms with him cannot be regarded as raising a confidential relationship. Plaintiff had left Bradbury’s home and lived apart from him for about five years before the transaction in question, and nothing is seen in their relations or the circumstances which approaches a confidential or fiduciary relationship, one which under the law made it the duty of Bradbury to disclose mere opinions that he had received from third parties. In Bigelow on Fraud, it is said:
“The mere fact however that a party was once in a relation of confidence to another, and that he still continues to be a trusted friend, appears not to be enough; a sale to such an one will be valid though the price wás to his knowledge, and not to that of the vendor, inadequate, being of property of which he had formerly for many years had special charge as a servant. It need hardly be said that the fact that a party dealing with another has great confidence in him and may be easily influenced by him, does not raise the technical confidential relation.” (Bigelow, The Law of Fraud, 366.)
If the parties had been brothers in fact, that without more would not have created a relation of trust and confidence which would have required a disclosure of the opinions of strangers as to the effect of the deed. In Bacon v. Soule, 19 Cal. App. 428, it was said:
“In the absence of a confidential relation, the defendants were under no obligation to volunteer information to the plaintiff which was as readily accessible to him as it was to the defendants; and as ‘the law will not undertake the care of persons who will not, with the means at hand, take care of themselves,’ the mere silence of the defendants cannot be construed to be a fraudulent concealment sufficient to support an action for fraud.” (p. 439.)
If the defendant had been the agent of plaintiff, or had stood in a confidential or fiduciary relation to him, a full disclosure of all material facts relating to the subject of their dealings would have been required. But there was no actual or assumed relation of confidence between them. The state of the title had been brought to the attention of both, each had obtained independent advice concerning it, and the effect of the deed and the interpretation of its terms still remains a matter of doubt. The conflicting legal opinions which the parties had received in no way changed the status of the title, and the silence of the defendant related, as we have seen, to a question of law as to which the means of information was equally available to both parties. On the controlling facts ás disclosed in the testimony by plaintiff, we conclude the defendant was under no legal obligation to inform the plaintiff as to the advice given him by his attorney.
Considerable is said about the intemperate habits of plaintiff, but there is no contention nor anything tending to show that he was intoxicated or lacking in capacity to understand what he was doing when he made 'the transfers based on what must be regarded as a substantial consideration. The conclusion reached makes it unnecessary to place a construction upon the deed executed by Venable, 'sr., to the plaintiff, or to.consider the other questions discussed by counsel. Upon plaintiff’s evidence it must be held that he was not entitled to the relief sought, and therefore the judgment is reversed, and the cause remanded with the direction to enter judgment for the defendants. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the assignee of a recorded real-estate mortgage to foreclose the mortgage. The judgment was that a subsequent mortgage, taken before the assignment was recorded, was a superior lien. The plaintiff appeals.
In October, 1910, Bell gave the Commercial State Bank a real-estate mortgage to secure a negotiable promissory note for $2,000, due in six months. The mortgage was recorded on October 29. On November 24, 1911, the note was indorsed and delivered, and the mortgage was assigned by written assignment, duly acknowledged, to the plaintiff. Bell had given a mortgage to Palmer on other property to secure an indebtedness of $3,000. In September, 1914, this indebtedness was renewed, delinquent interest and commissions were added, and Bell gave Palmer a mortgage on both tracts, to secure payment of the total sum of $4,300. An abstract of title dis closed the mortgage to the bank. Before taking his mortgage, Palmer made inquiry of the bank, and was told the mortgage was paid and would be released, but no release was executed. In 1916, Palmer’s mortgage was foreclosed, in an action to which neither the bank nor the plaintiff was a party. The land was sold to Palmer, who assigned the certificate of purchase to the Hughes-Palmer Investment Company, and in December, 1917, a sheriff’s deed was issued to the investment company. The evidence indicates that Palmer and the investment company represented a single interest. On January 3, 1918, the bank executed a release of the plaintiff’s mortgage, which did not reach the record until February 26, 1918. On January 5, 1918, the plaintiff filed her assignment for record.
The general recording act provides for recording instruments affecting real estate, and provides that no instrument eligible to record shall be valid except as between the parties, and except as to those who have actual notice, until deposited for record. (Gen. Stat. 1915, §§ 2068, 2070.) In support of the judgment of the district court, it is contended these sections exclude from consideration the assignment from the bank to the plaintiff, and determine the controversy in favor of the investment company. An assignment of a mortgage is merely a formal transfer of title to the instrument, and the assignment from the bank to the plaintiff was admittedly good for that purpose. The plaintiff, however, did not need the assignment in order to invest her with ownership of the mortgage. She acquired full title by purchase of the note which it secured, and the assignment may be excluded from consideration without prejudice to her lien. The mortgage was recorded, was unreleased, and was notice of lien, nó matter who owned it; Palmer did not take his mortgage on faith in the record, but in opposition to the record; and instead of the sections referred to determining the controversy in favor of the investment company, another section of the general recording act, providing that recorded instruments, entitled to record, impart notice to subsequent mortgagees (Gen. Stat. 1915, § 2069), determines the controversy in favor of the plaintiff.
The recording of assignments has always been a matter of special legislative consideration, in connection with the general subject of real-estate mortgages. The chapter of the General Statutes of 1868 relating to mortgages contained the following provision:
“The recording of the assignment of a mortgage shall not be deemed, of itself, notice to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the mortgagee.” (Ch. 68, § 3.)
This provision was interpreted in the case of Burhans v. Hutcheson, 25 Kan. 625. The opinion reads:
“From the conclusions of law stated, the court must have decided that where a negotiable note is secured by mortgage on real estate, and both are assigned by indorsement thereon before maturity to a bona fide purchaser, the mortgage is taken subject to all payments made by the mortgagor to the mortgagee at any time before actual notice to the mortgagor of such assignment. Counsel for defendants claim this to be the law, and have cited many respectable authorities in support thereof. We think the doctrine thus announced not sustained by reason or sound policy, and if adopted it would be an unfortunate obstacle to commercial transactions so common in' this state as the sale and transfer of negotiable paper secured by real-estate mortgages, and that such a doctrine is not in accord with the previous decisions of this court controlling the. principles of law applicable to negotiable paper secured by such mortgages.' In this state, the common-law attributes of mortgages have been by statute wholly set aside, and the ancient theories concerning such mortgages demolished, The mortgage is a mere security, creating a lien upon the property, but vesting -no title. The debt secured by the mortgage is the principal thing, and the mortgage the mere incident following the debt wherever it goes, and deriving its character from the instrument which evidences the debt. Here, the negotiable notes are the principal evidence of the debt, and the mortgage is merely ancillary; the mortgage follows the notes; whoever owns the notes, owns the mortgage. . . .
“Section 3 speaks of the recording of the assignment of the mortgage, and does not by its terms refer to negotiable paper, and it seems to us a strained interpretation to hold its provisions applicable, where a debt is evidenced by a negotiable note, secured by mortgage upon real estate, when such mortgage is merely ancillary thereto, and follows the note wherever it goes, deriving its character from such instrument. A better interpretation, and one clearly more in accord with the law of mortgages in this state, is, that such section has reference only to a mortgage standing alone, or one securing debts and notes of a non-negotiable character.” (pp. 629, 631.)
In the Burhans case the mortgagor had attempted .to release the mortgage. In the case of Lewis v. Kirk, 28 Kan. 497, the question was one of priority between the assignee of a mortgage whose assignment was not recorded and a purchaser who took title relying on a release by the original mortgagee. It was held the innocent purchaser should be protected. In the opinion, which distinguished the Burhans case, it was said:
“If a mortgage has been executed by the owner of the property to secure the payment of a negotiable promissory note, and the mortgage has never been recorded, then we think a person who has no knowledge of the mortgage may purchase the property from the mortgagor freed from all liens or equities created by the mortgage. Or, if the mortgage has been recorded and then has been regularly released on the margin of the record thereof by the mortgagee, then we think that any person, if he does it in good faith, may purchase the property in like manner freed from all liens and equities existing in favor of the holder of the mortgage; or in other words, and to state the proposition more succinctly, a purchaser in good faith of real estate may always rely upon the public records, subject only to the equities of persons in open, visible and exclusive posséssion of the property.” (p. 505.)
In the case of Insurance Co. v. Huntington, 57 Kan. 744, 48 Pac. 19, the mortgagee released the mortgage after he had assigned it. The^ syllabus reads:
“The assignment and delivery of a negotiable promissory note before maturity operates as an assignment of a mortgage given as security for the payment of the note. After such transfer the original mortgagee has no power to release or discharge the lien of the mortgage, and a release made by him without authority will not affect the rights of the assignee.” (¶1.)
In the opinion it was said:
“No obligation rested upon Huntington to record his assignment in order to protect himself against the subsequent mortgagee. As the mortgage was given to secure a negotiable note, it could be assigned by the mere indorsement or delivery of the note, and there was in fact no assignment to record. It has been expressly held that the bona fide holder of negotiable paper, transferred to him by indorsement thereon before maturity and secured by a real-estate mortgage, need not record the assignment of the mortgage. (Burhans v. Hutcheson, 25 Kan. 625.)
“After assigning the note and mortgage, the mortgagees had no interest therein, and no power to release or discharge the lien of the mortgage; ana, being wholly without authority, the release executed by them cannot affect the rights of the assignee. When the plaintiffs in error found upon the record a mortgage securing a negotiable note, it was their duty to inquire Whether the release was executed before or after the assignment and by persons having authority to do so.” (p. 747.)
The Huntington case was decided in 1897, and in that year the legislature passed an act, the pertinent provisions of which may be summarized as follows: All assignments of real-estate mortgages thereafter made should be recorded within 90 days; no assignment of a mortgage should be received in evidence against the mortgagor unless recorded; no transfer of note or mortgage should be' received in evidence against the mortgagor unless the mortgage had been assigned and the assignment recorded; a release by the last assignee of record should fully discharge the mortgage and cancel the debt as to the mortgagor. (Laws 1897, ch. 160.) ...
In the case of Burt v. Moore, 62 Kan. 536, 64 Pac. 57, the statute was interpreted as follows:
“The only penalty prescribed in the act is that if an assignment is not acknowledged and recorded as therein provided, it shall not be received in evidence in any court of the state. It was not within the constitutional power of the legislature, nor did it attempt, to annul the mortgage or to destroy the mortgage lien. The mortgage continues in existence and remains enforceable notwithstanding the statute; and the lien and right to enforce the same may be established by any competent proof; . . . The failure to have the assignment acknowledged and recorded effectually bars its use as evidence, but when a case can be made out or is established without such evidence a judgment of foreclosure should be given.” (p. 540.)
At the next regular session of the legislature, the act of 1897 was repealed, and the present law was enacted. It contains the following section:
“In cases where assignments of real-estate mortgages are made after the passage of this act, if such assignments are not recorded, the mortgagor, his heirs, personal representatives, or assigns, may pay all matured interest or the principal debt itself prior to the recording of such assignment to the mortgagee, or if an assignment of such mortgage has been made that duly appears of record, then such payment may be made to the last assignee whose assignment is recorded in accordance with the provisions of this act, and such payment shall be effectual to extinguish all claims against such mortgagor, his heirs, personal representatives, and assigns, for or on account of such interest or such principal indebtedness; and no transfer of any note, bond or other evidence of indebtedness, by indorsement or otherwise, where such indebtedness is secured by mortgage on real estate within this state, shall prevent or operate to defeat the defense of payment of such interest or principal by the mortgagor, his heirs, personal representatives, or assigns* where such payment has been made to the mortgagee or to the assignee whose assignment appears last of record under the provisions of this act: Provided, however, That in all such cases the assignee who may hold such unrecorded assignment shall have a right of action against his assignor to recover the amount of any such payment of interest or principal made to such assignor as upon an account for money had and received for the use of such assignee.” (Laws 1899, ch. 168, § 3, Gen. Stat. 1915, § 6485.)
This statute was interpreted in the case of Anthony v. Brennan, 74 Kan. 707, 87 Pac. 1136. The syllabus reads:
“The act relating to the recording of assignments of mortgages (Laws 1899, ch. 168) does not restrict the methods by which a negotiable note and a mortgage securing it may be transferred, nor prevent a transfer of the ownership of such paper by mere delivery.”
In the opinion it was said:
“That act does not undertake to limit the methods by which real-estate mortgages may be transferred, and it does not provide'that the failure to make a record of an assignment of a mortgage shall invalidate the security of the transfer. It was intended as a protection to mortgagors, and the only penalty prescribed for not recording the transfer is that all payments made by the mortgagor to the mortgagee or to any one who appeared to be the owner shall be credited to the mortgagor, although the assignee never received such payments. This was the view taken of the statute in earlier cases.” (p. 709.)
In the case of Mayse v. Williams, 77 Kan. 813, 91 Pac. 795, Brewer appeared on the record as assignee of a mortgage. Mayse procured from Brewer a release for which he paid $25. After procuring the release, Mayse obtained a quitclaim deed from the owner of the land. Brewer advised Mayse she could not find the note and mortgage, and she did not comply with his request to make an affidavit of ownership. In fact, Brewer had assigned to Williams, who had not recorded his assignment. In an action by Williams to foreclose the mortgage, the district court allowed Mayse $25, and entered the decree of foreclosure prayed for. Mayse appealed. In affirming the judgment the court said:
“Under chapter 160 of the Laws of 1897, requiring all such assignments to be recorded within ninety days after the transfer, and providing in express terms that a release executed to the last recorded assignee should discharge the mortgage, the release relied upon here would have been a complete defense to the action. But in 1899 that law was repealed and a new act, chapter 168 of the Laws of 1899 (Gen. Stat. 1901, §§4234-4239), enacted in its place. In the latter the provision that a release by the last assignee of record shall be effectual fully to discharge the mortgage is omitted. . . . Whatever the purpose of the legislature may have been, whether, as suggested, it believed the former provision hindered and impaired the usefulness of mortgage notes'as security, it is clear that the provision was eliminated from the act of 1899, and nothing of the kind lfeft in its place.
“Mayse was not a purchaser of the land in this .transaction; he was attempting to secure a release and satisfaction of a mortgage from a person whom the evidence shows he had some reason to believe might not be the owner, with the expectation of afterward acquiring the title to the land free from the mortgage.” (p. 814.)
Why the district court compelled, the rightful holder of the mortgage to reimburse an outsider, who did not own the land or owe the debt, for his outlay in procuring an unauthorized release from a person who, he had-reason to believe, did not own the mortgage, is not disclosed. The references to the subject in the cases of Mayse v. Williams, supra, and Bullock v. Kendall, 80 Kan. 791, 104 Pac. 568, are not to be taken as adjudications by this court.
The statutes of 1897 and 1899 were enacted at the ebbing of a tidal wave of farm mortgages which swept Kansas, and were not enacted for the benefit of subsequent purchasers or mortgagees; the intention was to benefit mortgagors only. Even the savage statute of 1897 did not declare that failure to record an assignment of a recorded mortgage should give priority to a subsequent purchaser or mortgagee. Two years later the legislature again considered what penalty should be assessed against an assignee who omitted to record his assignment. It stopped with the provision that payments made by the mortgagor to the holder of record should be credited to the mortgagor, and there is no other penalty. One who acquires a negotiable note, secured by recorded mortgage, is not, as to subsequent purchasers or mortgagees, the possessor of a mere “secret equity,” if no assignment of the mortgage be placed on record. Record of the mortgage is notice of its existence, and the holder is not obliged to disclose his ownership by recording his assignment in order to preserve priority of lien.
The result of the foregoing is that we must turn to Lewis v. Kirk, 28 Kan. 497, and Insurance Co. v. Huntington, 57 Kan. 744, 48 Pac. 19, already referred to, for principles on which to base a decision.
Taken literally, the language of the syllabus and opinion in the case of Insurance Co. v. Huntington would place the decision in conflict with that of Lewis v. Kirk, which was not referred to, would place the decision out of harmony with the great weight of authority, and would tend to embarrass rather than to facilitate commercial uses of negotiable mortgage securities. The difficulties encountered in securing conclusive proof that all releases by mortgagees had been made with authority, would be practically insuperable, but no new mortgage could safely be taken without such proof. Under the facts of the case, however, the decision was sound. The mortgage covered a number of city lots. The record disclosed that the mortgage was assignable by negotiation of the note it secured. Before the mortgagee released the lots in controversy, Huntington, as assignee, had made five releases on the margin of the record. Under these circumstances, it was properly held a purchaser should have inquired if the release of his lots “was executed before or after the assignment, and by persons having authority to do so.”
In Lewis v. Kirk, the question was, Who should suffer from the fraud of the mortgagee in releasing the mortgage after he had sold the note which, it secured — the innocent assignee of the note and mortgage, or the innocent purchaser of the land? The decision was, the purchaser might rely on the record showing the release; but the decision was equally emphatic that the record of the mortgage protected the assignee until the mortgage was paid, or was released by some one having authority to do so.
“But when the mortgage is recorded, its negotiable character is then extended even to bona fide purchasers of the property, and it retains such character contemporaneously with the existence of the note to which it is an incident until the note is satisfied, or until the mortgage is released of record by the mortgagee, or his attorney, assignee, or personal representative . . .” (p. 506.)
These rules, equally just to holders of negotiable real-estate securities and to purchasers of real estate, are settled rules of property in this state.
It is argued that the plaintiff, by omitting to record her assignment, placed it within the power of the bank to mislead the investment company, to its injury, and that, as a consequence, it would be inequitable for the plaintiff to prevail. The note to the bank was payable to its order, was copied in the mortgage, and the record of the mortgage warned the investment company that the paper was negotiable and might be the property of an assignee. There was no occasion for the investment company to depend on a report of payment based on an interpretation of the bank records. All it needed to do was to refrain from closing the loan until a release from the bank appeared on the public records, which constitute the standard source of information in such cases. Having been put on guard, the investment company elected to pursue an unsafe course instead of a safe one, and it has no standing in equity to charge the consequences of its conduct to the plaintiff.
In this instance, the note was transferred and the mortgage was assigned after maturity. That fact made the paper subject to any defense the maker might have against the payee of the note, but as long as a negotiable mortgage, duly recorded and not released, remains valid security for all or any part of the debt evidenced by the note, a subsequent purchaser or mortgagee takes, subject to the assignee’s lien. There was some evidence .the assignment to the plaintiff was withheld from record for temporary accommodation of the bank. That fact is of no importance to one who purchased in the face of a record showing an unreleased mortgage.
The judgment of the district court is reversed, and the cause is remanded with direction to award the plaintiff, a first lien, and to dispose of the case accordingly. | [
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Per Curiam:
These cases are reversed and remanded with directions to overrule the demurrers to the petitions for the reasons set out in the opinion in Schmoyer v. Van Hosen, just decided (ante, p. 759), the facts being substantially the same. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sought to compel the specific performance of a contract for the execution of an oil and gas lease and to recover damages for refusing to comply with the terms of the0 contract. Judgment was rendered in favor of each of the defendants on their separate demurrers to the petition of the plaintiff, who appeals.
The' principal question presented is, Was there a contract to execute an oil and gas lease? There was much negotiation by correspondence consisting of letters and telegrams containing propositions and counterpropositions, without any agreement, unless one was made by correspondence taking place between March 7, 1920, and April 4, 1920. In a letter dated March 7, the plaintiff offered Mrs. Hixon $1,010 for a lease and requested that, if she sign the lease, she should send it to the Wilson County Bank at Eredonia with instructions to turn the lease over to the plaintiff on the payment of that amount. The plaintiff requested twenty days in which to look over the records in Elk county before taking up the lease. On March 11, Mrs. Hixon wrote the plaintiff refusing to give twenty days for an examination of the records but offered to give two or three days and stated in the letter, “When I sign after some changes in the lease, I will expect draft from you. Will send contract to Wilson County Bank. Kindly let me hear from you on receipt of this.” On March 26, Mrs. Hixon wrote the plaintiff and informed him that she had signed the lease and sent it to the Wilson County Bank. On March 27, the plaintiff wired Mrs. Hixon as follows, “Will accept oil lease on terms of your last letter. Wire me my expense when you start lease so I can take care of draft and get abstract ready.” The plaintiff had not then received the letter from Mrs. Hixon dated March 26, and the telegram must have been in response to Mrs. Hixon’s letter dated March 11. On March 29, the cashier of the Wilson County Bank wrote the plaintiff that the bank had the oil and gas lease and a draft for $1,010. On April 4, the plaintiff wrote Mrs. Hixon that he had obtained an abstract of the land, that Mrs. Hixon’s title to the land was bad, and that delay would be necessary. Some further correspondence took place, but it is immaterial. On April 22, 1920, the plaintiff was informed by the Wilson County Bank that Mrs. Hixon refused to proceed further. This action was afterwards commenced.
An examination of the correspondence, so far as it is set out, will reveal that each letter or telegram contained an additional stipulation which must be agreed to before a binding contract can be said to have been made. The correspondence' does not show a definite proposition from one side and an unqualified acceptánce by the other.
Another difficulty is that the correspondence concerned a lease and not a contract for a lease. There was no offer made to enter into a contract for a lease. The offers that were made were for the purpose of entering into a lease.' Each letter and telegram con cerned the conditions under which it would be made; they did not concern the terms and conditions of a contract providing for the execution of a lease. A lease was signed, but it was not delivered, and there was no contract for its execution. The demurrers were properly sustained; the plaintiff cannot recover.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff appeals from orders sustaining a demurrer to his testimony and refusing certain proffered amendments to his petition.
He alleged in substance that the plaintiff was a stockholder in the Western Straw Products Company, a corporation organized for the purpose of manufacturing strawboard and paper, of which stock he owned 100 shares of $100 each; that in January, 1914, a new company was organized known as The Hutchinson Box Board & Paper Company, which was a reorganization of the former company and which took over and became the owner of its plant and continued the operation of the business; that the plaintiff became the owner of $6,300 of the box board common stock; that the directors of this company employed the defendant as manager of its business and agreed to pay him $17,500 par value of the preferred stock a year for three years and since that time he has been in the exclusive control and management of its affairs; that in August, 1914, the defendant proposed to the directors of the box board company the organization of another corporation to be called The Hutchinson Egg Case Filler Company, which was done, and the box board company agreed to rent a tract of land and erect a filler plant, the filler company agreeing to take the required material, strawboard, from the box board company; that in January, 1915, a resolution was adopted ratifying the action of its board in leasing the ground to the filler company, and immediately after the adjournment of the board, the defendant caused a contract to be drawn between the box board company and the filler company which he signed as president of both companies, and that F. W. Kaths,*who was secretary of the filler company, attested his signature as president of the filler company, and also under his direction signed the name of the secretary of the box board company without his knowledge or authority; that after the execution of this contract the defendant bought all the stock in the filler company, or about.all, and is still the owner of it; that the defendant received all the profits from the filler company from such contract; that upon the execution of this contract the filler company proceeded to purchase from the box board company all the strawboard it required at $21 a ton; that very shortly afterwards the price of box board began to advance until by the beginning of 1916, the price was about $40 a ton and advanced steadily so that during the years 1916 and 1917, the average price was $55 to $60 a ton, during all of which time the filler company through the president was buying box board at $21 a ton with a loss to the box board company of $60,000 in 1916, and more than $80,000 in 1917; that the defendant represented at various times to the stockholders and directors, including the plaintiff, that the box board company was not making any money and that its stock was worthless and concealed from them the existence of the contract referred to and the fact that the straw was being bought at $21 a ton.
“That in April, 1917, the defendant proposed to this plaintiff to purchase his said stock in the box board company at a price of $2,500 for all of his stock, and at the same time stated to the plaintiff that the said stock had no value and was worthless; that the said box board company was not making any money and never would. That the plaintiff had no knowledge as to the true facts and believed and relied upon said representation. That the said defendant as managing director of said box board company, and thereby a trustee for this plaintiff and the other stockholders, concealed all of the facts above set forth, and thereby wilfully deceived this plaintiff and persuaded him to sell his said stock to the defendant for $2,500.” -
The plaintiff went upon the stand and testified among other things as follows:
“I had known Emerson Carey prior to the 10th day of April, 1917, about five years and had confidence in him. I came down here the first part of April, 1917, to see him. I wanted him to buy my stock. He said he didn’t care to'buy. I asked him what he thought about it, and he said he didn’t think the stock was worth much. He said he didn’t think the stock was worth anything hardly, and he didn’t care to buy it. I tried to get him to make me an offer on it, but he. wouldn’t make me an offer. He said the stock wasn’t worth anything. I went home.. Later I wrote him a letter and made him an offer; I told him I would take $2,500.00 for my holdings in the Company. He sent me a check for $2,500.00, I think about the 24th of April, and I sent him my stock.”
A letter addressed to him October 16, 1915, contained this statement:
“Can you buy this stock or place it for me this is less than 50 cts. on the dolar for it and I doe not want to offer it to the public but I must have some money or go broke. T. E. Lyon. I am ready to turn over 60030.00 for 30000.00. Please let me hear from you.”
In reference to this the defendant wrote that it would be impossible for him to handle the stock at this time.
“Q. You say when you came up to see Emerson Carey to get him to buy this stock, he didn’t tell you anything about the financial condition of the plant? A. No, sir.
“Q. He didn’t buy your stock then did he? A. No, sir. I went home without selling to him. After I went home I made up my mind I would take $2,500.00 for it. I wrote him a letter and he sent me a check. He didn’t tell me in the letter that the stock wasn’t worth anything.
“Q. What did you say he said when he told you the stock wasn’t worth anything. A. Well, I was trying to sell it 'to him and he said he didn’t care anything about it, that it wasn’t worth anything.
“Q. Did he say it wasn’t worth anything? • A. Well, that it wasn’t worth anything to him or something.
“Q. What is that? A. It wasn’t worth anything to him.
“Q. It wasn’t worth anything to him. As a matter of fact, you knew it was worth something? A. Oh, yes; I thought it was.
“Q. You made up your mind it was worth $3,000.00 when you offered it to Mr. Asher didn’t you? A. I expect so. I figured it was worth that much to me to hang on it a while. . . .
“Q. Now, when you were down here talking to him about the stock and wanted him to buy it and didn’t fix any price on it, you said he said it wasn’t worth anything to him? A. Yes, sir. He said he didn’t care for it; he said the boys could buy it if they wanted to.
“Q. I thought you said a while ago he said it wasn’t worth anything to him? A. Well—
“Q. Which was it. That amounts to something. A. I might have changed a sentence or something.
“Q. We want you to tell what it was because it may mean a good deal. Which was it, that it wasn’t worth anything much to him or it-wasn’t worth anything much? A. It could have been both.
“Q. It could have been both; which was it? A. I don’t know. As a matter of fact I didn’t think it was worth a good deal to me. I couldn’t use it. I didn’t think it would ever be worth anything.”
After the plaintiff’s testimony was closed it was apparent that a demurrer was about to be sustained and the plaintiff asked leave to amend, which request was refused, and this and two other attempts were made to amend the petition by alleging how the price of straw had advanced in 1916 and 1917, and how the defendant succeeded in purchasing for himself and sons all the stock in the filler company and began a systematic campaign to buy stock in the box board company and bought $190,000 out of $313,000 worth, knowing that the stockholders were in ignorance of the true state of affairs, and were receiving no dividends, and believing from the defendant’s statements that the stock had little value, were anxious to sell; that the defendant would state that he did not care to buy, but would refer to his sons or one of the agents. These amendments were all refused.
The plaintiff also complains of the rejection of certain testimony touching the value of the stock and the amount of profit, but he proved all these down to March, 1917, and as the petition alleged the sale in April, 1917, it does not appear that any material error was committed in the exclusion of this evidence.
Reliance is placed on the rule declared in Stewart v. Harris, 69 Kan. 498, 77 Pac. 277, that the directing and managing officer of a corporation having knowledge of the condition of its affairs stands in such a trust relation to the stockholders that he must inform those not engaged in the transaction of the business of the true condition before he can rightfully purchase their stock. Counsel for the defendant do not regard this decision with favor, but call attention to the different rules announced by other courts. Had the facts alleged and proved, however, been within the analogy of that decision we would have no disposition to depart therefrom. It is difficult to read the record without concluding that the plaintiff’s counsel were not fairly advised by their client of the real facts of his case. If they had set out in their petition the substance of what the plaintiff swore to it is quite likely they would have ex pected a demurrer thereto to have been sustained. Instead of proving the allegation that the defendant sought him out under false pretenses and succeeded in buying his stock, the plaintiff’s own testimony shows that he sought out the defendant and tried to sell and it turned out to be almost an instance of running him down and wearying him by his importunity. The plaintiff simply failed to make out a case. It does not appear therefore that error was committed in overruling the demurrer.
The proper amendments, if they had been permitted, would not have changed the status of the case under the testimony which had already been introduced. The pleading, as it was, contained the allegation—
“That the said defendant as managing director of said Box Board Company, and thereby, a trustee for this plaintiff and the other stockholders, concealed all of the facts' above set forth, and thereby wilfully deceived this plaintiff and persuaded him to sell his said stock to the defendant for $2,500.”
- The amendments ■ sought to be added were only amplifications and evidence of this very succinct averment already set out. Besides, in such matters the discretion of the trial court is controlling unless abused. (Long v. Railroad Co., 100 Kan. 361, 164 Pac. 175, and cases cited.)
Complaint is made that evidence of the ratification of the filler company contract and of the value of the stock was refused. As to the first, it may be said that the contract itself was received in evidence and stockholders and officers were permitted to testify as to their knowledge of it or lack thereof, and it was admitted that the secretary did not sign his own name to it. As to the second, counsel say in their brief that they offered the sworn statement of the defendant to the secretary of state showing the real value of the real estate and personal property. , The abstract shows that this report was admitted “for the purpose of the valuation only of the stock.”
A consideration of the entire record fails to convince us that any-material error appears.
Thé rulings complained of are therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant was convicted of grand larceny. The information charged that in Dickinson county on the 18th day of August, 1921, and in the nighttime, he took and carried away fifty-five domestic chickens, the property of Daniel and Louisa McBeth, of the value of sixty dollars.
The court instructed the jury in substance that if the property taken consisted of domestic fowls of the value of twenty dollars or more, or if the fowls were taken in the nighttime, the offense would be grand larceny; that if the property taken was domestic fowls of a value less than twenty dollars, not taken in the nighttime, the offense would be petit larceny, and that under the information a conviction might be had for the larceny of the property or any part thereof, which amounts to grand larceny or petit larceny as thus de fined. There was a verdict finding the defendant guilty of grand larceny.
A motion to set the verdict aside because the value of the property taken was not stated, and the verdict failed to specify that the larceny- occurred in the nighttime, and no judgment specifying the crime of which defendant was convicted could legally be rendered upon the verdict, was overruled, as was also a motion for a new trial.
The principal contention is that the verdict does not disclose of what offense the jury found the defendant guilty. It is suggested that some of the jurors may have believed that the appellant stole the chickens in the daytime, and that the value was more than twenty dollars; that other jurors might have believed that he stole the chickens in the nighttime, but that the value was less than twenty dollars; that both classes of jurors would have been ready to vote for a verdict of grand larceny, but that in those circumstances such a verdict would not represent the united opinion of the jury which is required by law in order to convict.
The case of In re Howard, 72 Kan. 273, 83 Pac. 1032, is relied upon. Howard had pleaded guilty in the district court to an information charging him with stealing chickens in the nighttime, and sought release by habeas corpus on the ground that the judgment was void because it left uncertain the period of his punishment under the indeterminate-sentence act. The judgment in that case recited that the defendant had entered a plea of guilty to the charge of grand larceny, and that the court sentenced him to confinement and hard labor in the state penitentiary “until discharged therefrom by due course of law.” It was held that because the statute prescribes one penalty for certain acts defined as grand larceny, and another penalty for certain other acts, also defined as grand larceny, the judgment was void, because it “must show in which one of the two classes of grand larceny the criminal act falls [for which the defendant was convicted] before a sentence under the indeterminate sentence act can be imposed.” (p. 277.) The sentence was held void, but it was further held that because the conviction was regular and valid, the prisoner should not be discharged but should be returned to the custody of the proper authorities in order that proper sentence should be rendered.
But this vase differs from the Howard case. The sentence reads:
“It is therefore considered, ordered and .adjudged by the court that said defendant, Roy Startzman, is guilty of the crime of grand larceny, and that as a punishment therefor he be sentenced to the Penitentiary of the state of Kansas for a period of not less than one year nor more than five years, and that he pay the costs of this prosecution taxed at $-
It follows the provisions of the indeterminate-sentence law, which provides:
“The court imposing such sentence shall not fix the limit or duration of the sentence, but the term of imprisonment of any person so convicted shall not exceed the maximum nor be less than the minimum term provided by law for the crime for which the person was convicted and sentenced, the release of such person to be determined as hereinafter provided.” (Gen. Stat. 1915, § 8179.)-
While it would have been proper for the trial court to have required the jury to make the verdict more definite and certain by stating whether they found the offense to have been committed in the daytime or in the nighttime, and to have fixed the value of the property, it is inconceivable that any of the defendant’s substantial rights were affected by the failure of the court to do that. The evidence established that the value of the fowls was approximately sixty dollars, and it would make no difference in the result whether the jury believed that the offense was committed in the daytime or in the nighttime; in either case the offense would be grand larceny as the court instructed. In the Howard case the opinion commented upon the fact that neither the prison officials nor the board authorized to parole prisoners could discover from the commitment whether the maximum term was five or seven years. In this case the commitment follows the judgment and sentence which limits the period of imprisonment at not less than one nor more than five years.
It having been established by sufficient evidence that the defendant stole the chickens, and that their value was more than twenty dollars, we regard the point relied upon as technical and without substantial merit.
There was no motion to quash the information nor any claim made that it in effect charged two offenses; there was no motion to require the state to elect whether it relied upon an offense committed in the daytime or in the nighttime. For these reasons we think the defendant cannot now be heard to question the sufficiency of the information.
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The opinion of the court was delivered by
Greene, J. :
This is a proceeding to reverse an order of the court below denying plaintiff’s application to dismiss his action without prejudice, and sustaining a demurrer to plaintiff’s evidence. The action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of defendant’s agents and employees. After he had introduced his evidence the defendant demurred generally. After the argument of the demurrer, and while the court was considering the question and giving his reasons why he thought the demurrer should be sustained, but before a final decision was announced, the plaintiff announced to the court that he desired to dismiss his case without prejudice. • The application was denied, the demurrer sustained, and judgment rendered for defendant. The refusal of the court to permit the plaintiff thus to dismiss his case without prejudice is the first error of which complaint is made.
Section 397 of the code (Gen., Stat. 1901, §4846) reads :
“An action may be dismissed without prejudice to a future action : First, by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. . . .”
If it could be said that, the demurrer had been passed upon and sustained before the plaintiff made his application to dismiss, it would be clear, under the former decisions of this court, that the plaintiff could not, as matter of right, dismiss without preju dice. (St. Jos. & D. C. Rld. Co. v. Dryden, 17 Kan. 278; K. P. Rly. Co. v. Couse, 17 id. 571; Schafer v. Weaver, 20 id. 294; Bee Bldg. Co. v. Dalton, 93 N. W. [Neb.] 930; Beaumont et al. v. Herrick, 24 Ohio St. 445.) When plaintiff made his application the demurrer was still under consideration ; it was pending ; it had not been disposed of. The court was giving his reasons for the ruling he then expected to make, but which had not been made. The defendant, at the point where the plaintiff made his application to dismiss, might haye withdrawn the demurrer and gone on with the trial; or the court, after having used the language found in the record prior to the plaintiff’s application, in further reasoning upon the question might have changed its mind and determined that what first appeared sufficient for sustaining the demurrer, upon further reflection appeared otherwise. These were possible contingencies, one of which would have rendered a final determination of the demurrer unnecessary, and the other would have resulted in overruling it. These are only suggestions to show that when the plaintiff made his application to dismiss, the demurrer had not been disposed of. While it was pending, and before a final determination against the plaintiff, he could dismiss his case without prejudice.
This court has not gone so far in any of the reported cases as to say that while a demurrer to the evidence is pending the plaintiff may not dismiss without prejudice. It was said by Mr. Justice Valentine in Schafer v. Weaver, 20 Kan. 294, 296:
‘1 Where a demurrer to evidence is submitted to the court, the submission is only conditionally final. It is final upon the condition that the court shall sustain the demurrer, and shall not in its discretion choose to reopen the case for the admission of other evidence, or for the dismissal of the action without prejudice.”
When the application to dismiss was made in this case, the question being considered by the court was only conditionally final. While the case was in that status, it could be dismissed without prejudice to a future action. We think the court erred in denying the application.
The second contention is that the court erred in sustaining the defendant’s demurrer to the evidence. It can serve no public purpose for this court to go into an examination of the evidence in explanation of the reasons for its conclusion. Suffice it to say that a careful examination of the evidence indicates that the demurrer was properly sustained.
For the reasons assigned the judgment of the court below is reversed, and the cause remanded with instructions to sustain the plaintiff’s application to dismiss without prejudice.
All the Justices concurring. | [
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Per Curiam:
In this case, on January 5,1903, the judge of the district court gave the defeated party until March 31, 1903, to make and present a case-made for settlement and signing, upon five days’ notice of the time and place. On January 11 the judge’s term of office expired. Under the decisions of this court his jurisdiction to settle and sign the case ended with March 30, 1903. The case was settled and signed on March 31, 1903. There is nothing whatever in the order to indicate that March 31 was intended as an event upon which the settling and signing of the case should occur. The fact that a notice was served fixing that day for settling and signing the case, that the parties appeared before the judge on that day, and that the judge then settled and signed the case, cannot modify the order or change its meaning.
Therefore, the proceeding in error is dismissed for want of jurisdiction. | [
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The opinion of the court was delivered by
Atkinson, J. :
This action was brought by Fidella Burnell against William S. Bradbury to recover damages for an assault and battery. The jury returned a verdict of .one dollar for plaintiff. They also returned eight special findings, and upon motion of defendant the court rendered judgment on them against plaintiff for costs. Plaintiff brings error.
The assault on plaintiff by defendant arose out of a dispute whether plaintiff or defendant had the legal possession and right of occupany of twenty acres of hay land at the time of the assault. Plaintiff was the owner of the land, and defendant was her tenant. The premises were rented for use as hay land-, and defendant had so rented them for several years. At the time of the assault he had cut one crop of hay but claimed the right to cut and remove a second crop, which right plaintiff denied, and insisted on the right to pasture cattle on the premises after the hay had been cut therefrom. She drove about 100 head of cattle on the premises to graze, and was there herding them when defendant ordered her to leave and to drive the cattle therefrom. 'Upon her- refusal so to do, he attempted to drive the cattle off. He claimed that she interfered with his doing so; that when he had succeeded in driving some of them off she, with her horse and dog, would drive them back again. For that reason he, with a buggy wliip or rawhide, assaulted her while mounted on her horse, striking her about the body and limbs, and on the head and face. He claimed that the strokes on the head and face were accidental and unintentional, but admitted using the whip elsewhere.
As told by plaintiff the assault was brutal, and wholly unjustifiable. Defendant attempted to justify his course on the claim that she was a trespasser, interfering with his rightful occupancy of the premises ; that he ordered her to leave and she refused to go; that her conduct was very provoking; and that he used only such force as was necessary and rightful to remove her. In addition to a general verdict of one dollar for plaintiff, the jury returned the following special findings:
“ 1. Was the defendant, William S. Bradbury, entitled to the possession of the twenty acres of land described in his answer, on the 19th of September, 1901? Ans. Yes.
2. Was the plaintiff, Fidelia Burnell, in going on said land with her cattle on the 19th day of September, 1901, a trespasser ? A. Yes.
3. Did the defendant use more force than was reasonably necessary in removing the plaintiff and her cattle frpm said premises ? A. Yes.
4. In removing the plaintiff and her cattle from said land, was the defendant actuated by unlawful, wanton and malicious motives ? A. No.
5. If you find for the plaintiff, how much do you allow her for physical pain ? A. Nothing.
6. How much do you allow her for mental suffering ? A. Nothing.
7. How much do you allow her for humiliation and disgrace ? A. Nothing.
8. How much do you allow the plaintiff for punitive damages? A. One dollar ($1.00) and costs, except plaintiff’s attorney’s fees.”
It will be observed that in finding No. 4 the jury negatived one of the elements necessary to authorize or warrant a finding of punitive damages, yet, in finding No. 8, one dollar is allowed as such damages. "While by finding No. 1 it was found that defendant was at the time of the assault entitled to the possession of the premises, and by No. 2 that plaintiff was a trespasser thereon, yet by finding No. 3 it was found that defendant, in removing plaintiff from the premises, used more force than was necessary, which entitled plaintiff to a recovery. In the case of The State v. Bradbury, 67 Kan. 808, 74 Pac. 231, a criminal prosecution of defendant for the assault committed on plaintiff, it was held :
“One entitled to the immediate possession of real estate may, if he can, take peaceable possession; but in taking possession from one actually, though wrongfully, in possession, he cannot assault, beat and drive such occupant from the premises, and justify his offense against the law upon the ground that he was legally entitled to the possession of the premises and used no more force than was necessary to regain possession and drive the occupant off.”
In the case at bar plaintiff charged that defendant assaulted and beat her with a whip, and he so ad mitted. This entitled plaintiff to a recovery of nominal damages, and we must assume that the general verdict of one dollar was nominal damages, for such the law and the admitted facts necessarily required. The findings themselves, as above shown, disclose that the allowance by finding No. 8, of one dollar for punitive damages, could not have been otherwise than a finding of nominal damages. The special findings of the jury should be so construed as to harmonize them and uphold the general verdict, if possible so to do. (Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; U. P. Rly. Co. v. Fray, 43 id. 750, 23 Pac. 1039; St. L. & S. F. Rly. Co. v. Ritz, 33 id. 404, 6 Pac. 533.) There js evidence in the record to support all the findings of the jury thus construed.
Error is assigned in the admission and rejection of testimony, the giving and refusing of instructions, and the ruling of the court on motions filed in the case. We have examined the entire record and find no material or prejudicial error therein, aside from the ruling sustaining the motion of defendant for judgment on the special findings. For that error the judgment will be reversed, and the district court directed to enter judgment for plaintiff on the general verdict.
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The opinion of the court was delivered by
Bukch, J. :
While serving the defendant in the capacity of brakeman the plaintiff was injured in an attempt to couple freight-cars. In an action for the recovery of damages a demurrer to his evidence was sustained, and the railroad company justifies the conduct of the trial court upon three grounds ; (1) That it had no notice of the defect in the appliance causing the injury; (2) that the hazard was one incident to plaintiff’s employment, and therefore assumed; (3). that the plaintiff was guilty of contributory negligence.
The defective appliance was a part of the equipment of one of the defendant’s own. cars, and the de^ feet itself was alleged to be one originating in faulty, construction. If this be true, proof of notice was unnecessary. It was the duty of the defendant to furnish a properly constructed coupling apparatus. Whether the deféndant built the car itself, or employed others to do so, or purchased it of reliable car ■manufacturers, it was bound to know the condition of the coupling contrivance when the car was put into service, and it will not now be heard.to say that it had no knowledge of patent, original, structural defects. (Greenleaf v. Illinois Central Railroad Company, 29 Iowa, 14, 46.)
In volume 20 of the American and English Encyclopedia of Law, second edition, page 93, occurs the following accurate summary of the authorities :
“Where the defect through which the injury occurs is in the original construction of the appliance or instrumentality, notice thereof to the master is unnecessary. In case of structural defects, knowledge thereof by the master will be inferred. This doctrine is no more than an application of the general rule that it is the master’s duty to exercise ordinary care in providing tools, machinery and appliances that are reasonably safe.”
In the case of Alexander v. Town of Mt. Sterling, 71 Ill. 366, 369, the language of Chief Justice Breese regarding the duty of a municipality to know the character of a structure it supplies for the use of its inhabitants is pertinent to the attitude of a private corporation toward its employees. He said :
“For the proper construction of this sidewalk, it is not denied the town authorities were responsible. They should see to it that such structures are properly made and reasonably safe, and they must be kept so. They, being the projectors of them and the builders of them, are, in law, held to a knowledge of their original condition. It would be absurd to say, they must have notice of the original defect, when they themselves are the authors of the defect. Why hotice to a party of original defects in a work he is bound to make safe and reasonably free from defects? The town being in fault at the outset, no notice was necessary.”
In the case of Finnerty v. Burnham, 205 Pa. St. 305, 54 Atl. 996, decided in 1903, an injury occurred from the use of a defective chain in the equipment of a crane. The master supplying the crane attempted to justify on the ground that the chain had been purchased of one of the most reputable manufacturers, and placed in stock; that others of a similar kind had been furnished, so that the employee could select any one he desired; and that general instructions had been given to report, and have repaired, any defects. But the court adopted in full the statement of the law already quoted from the American and English Encyclopedia of Law, and further held :
“Where a chain is used as an attachment to a crane for the purpose of lifting very heavy weights, the same rule that imposes upon the employer the duty of supplying a reasonably safe and suitable crane requires him to furnish a chain of like character.”
The defendant cites certain decisions of this court supposed to favor a different doctrine, but their real purport is misapprehended. Only the general formulas of the law relating to notice of defects were refered to in those cases, and the particular rule under consideration was not discriminated.
The plaintiff was injured while attempting to adjust a draw-bar with his foot, in order to effect a coupling. His evidence tended to prove that when properly constructed the draw-bar is in the center of the car and is held in place by heavy timbers on each side of it, called draft-timbers. Above the neck of the draw-bar is a piece of timber, and below it a strap or plate of iron, both held fast by bolts running through the ends of the draft-timbers. The draft-timbers should be near enough together to prevent the draw-bar’s becoming out of line, and in order to secure a snug fit a large bolt is passed down from the timber above on each side of the draw-bar between it ■and the draft-timber and through the plate beneath. The car in question had been constructed without the bolts necessary to prevent the lateral play of the ■draw-bar, and the draft-timbers were so far apart that, when pushed to one side, the head of the draw-bar failed to meet squarely the head of the draw-bar on the car to be coupled, but passed by it, and crushed the plaintiff’s foot. A spectator of the accident described the draft-timbers as worn and “slivered up,” but the testimony of that witness, as well as that of the plaintiff, clearly showed the primary defect to be one of construction, and the case should have been submitted to the jury, so far as the question of notice to the defendant was concerned.
The contention of the defendant that the plaintiff assumed the risk of injury is based upon his testimony that it was not unusual for draw-bars to be out of line, and that it was necessary almost every day for him to put them in place in order to make couplings. But the plaintiff further testified that, so far as he knew, the only result attending the meeting of cars with a draw-bar out of line was that they would fail to couple. The draw-bar in question was not movable to such an extent that it was obvious that it would slip by. There was no evidence that any circumstances of that character had ever been brought to the plaintiff’s attention. He was a brakeman, and not a skilled mechanic or scientific car-builder. He was not chargeable with greater knowledge of the effect of the relation of pieces and the operation of forces than his daily experience furnished. If the knuckles of the draw-bars would still meet and the cars simply recoil, as the plaintiff believed would be the case if the draw-bar were not in position, there was no danger, and without evidence indicating that the erratic action of the draw-bar in this case might or should have been anticipated, or that, the defendant knew, or should have known, the danger attending its unforeseen conduct, it cannot be said, as a matter of law, that he contracted to take the risk of such a result. (Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253.)
On the general question of contributory negligence the case of G. R. I. & P. Rly. Co. v. Eversole, 65 Kan. 857, 69 Pac. 1126, is controlling. The casualty under consideration is a duplication, in all essential respects, of the one there described. The defendant attempts to make a distinction between them by claiming that the couplers did not pass, by in this as they did in the Eversole case. The record, however, is otherwise. On direct examination the plaintiff testified :
“Q,ues. Where was your foot—between the lip of the moving car and the knuckle of the other car ? Ans. Yes, sir.
“Q. Where did the draw-bar and the knuckle that was closed on it of the moving car finally stop against the draw-bar on the car standing still ? A. Right in this position in here.
“Q. Did it slip by? A. Yes, sir; it throwed this draw-bar away over.
“Q. Which way—from you or toward you? A. Prom me ; it went away over from me.”
■ It is true that before the accident occurred the plaintiff attempted to adjust the draw-bar by hand and found it would not stay in position ; but mere knowledge of a defect does not bar recovery. To establish negligence per se the danger of using the imperfect appliance must be so great and so apparent that a person of ordinary prudence would not encounter it.' Only after the plaintiff’s foot had been caught and held did he discover the possibility of the draw-bar’s being thrown so far to one side by the impact of the car that it would pass by the knuckle of the draw-bar on the other car instead of meeting it face to face.
The propriety of the plaintiff’s use of his foot to push the draw-bar into place was a question of fact for the triers of fact, and not a question of law for the court. The defective car was moving so slowly that the plaintiff had ample time to adjust himself to meet its approach in safety. The engine was disconnected and he had nothing to fear from any sudden or un expected impulse which might be given to the car. With respect to the method of assisting couplings the plaintiff testified:
“Q,. How did you assist? A. Assisted in adjusting the draw-bars to the center of the car so that they may make.
“ Q,. Well, how did you do that? How did you proceed about it ? A. Used my hand or my foot, whichever came handiest to do that work, to shove them over.”
There was no rule of the company governing the conduct of its brakemen with respect to coupling cars whose draw-bars might be out of line. The plaintiff did not know, and was not bound to anticipate, that the draw-heads would pass each other, and it is only on the assumption that no man of ordinary prudence would have used his foot to control the refractory bar that plaintiff could be declared to be negligent, as a matter of law. This assumption the district court was not warranted in making.
There was evidence that draw-bars were sometimes wedged into place by pieces of wood or stones or cinders, if any were at hand. The law is plain that a plaintiff may not recover for injuries resulting from his voluntary choice of an unsafe method of doing his work when a safe one was open to him. (Carrier v. Railway Co., 61 Kan. 447, 59 Pac. 1075.) But to be unsafe a method must be such that a reasonably prudent man would not, under all the circumstances, adopt it. The question must always be finally resolved with reference to that standard. If several ways be open and one of them he such that a reasonably prudent man would choose it, no negligence can be imputed to the choice, even if all the others be absolutely safe. In this case the plaintiff might have allowed the cars to meet and rebound and, after they had come to rest, he might have blocked the draw-bar and waited for the engine to return to make the coupling ; then he would not have been injured. Or he might have refused to couple the car until it had been repaired, or he might have left the service of the company ; then he would not have been injured. But if a reasonably prudent man would have attempted to make the coupling, and if in doing so such a man would have used his foot in a particular way, the plaintiff could follow the same course and not be negligent'; and unless he were guilty of negligence he may recover, the elements of a cause of action in his favor being proved.
The district court having undertaken to determine, as matters of law, questions of fact which should have been submitted to the jury, its judgment is reversed, and the cause is remanded with direction to grant the plaintiff a new trial.
All the Justices concurring. | [
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Per Curiam:
Bart. Sanders sued Robert Sands for slander and recovered a judgment for $400, from which the defendant prosecutes error.
The defamatory words complained of charged Sanders with stealing apples from Sands. It appears that Sanders, as a tenant of Sands, made a division of an apple crop between them, and that Sands complained that the division had been unfairly made, the tenant keeping the good apples for himself and giving only the.culls to his landlord. Plaintiff in error, Sands, contends that his charge of stealing was made with the sole reference to this transaction, .and. was so understood by his hearers, and that, as the wrongful act complained of was not technically stealing, ■and as no larceny was possible under the circumstances stated, his- language was not actionable per se. He also •contends that there should have been no recovery in the ■absence of proof of special damages. No question of law is presented with regard to this contention for the reason that the subject was covered by the instructions, and the jury manifestly found that the charge made was not intended, or was not understood, to refer simply to misconduct in the division of the apples, a finding which was not without support in the evidence.
The jury returned a verdict for $500 as general damages, no punitive damages being allowed. The trial court required a remittitur of $100, in which the plaintiff acquiesced. Plaintiff in error argues that the reduction must have been occasioned by the belief that the jury were influenced by passion and prejudice. We do not think this inference justified by the record. (Railway Co. v. Frazier, 66 Kan. 422, 71 Pac. 831, and cases cited.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J. :
This action was brought to recover a personal judgment on a promissory note and to foreclose- a real-estate mortgage. Judgment was for plaintiff. The note and mortgage were given by plaintiffs in error, defendants below, to Alexander Scott, the father of Mrs. Troutman, and by him assigned or' indorsed to the defendant in error, plaintiff below. The cause was tried as if the note were nonnegotiable and we shall so treat it. The defendants pleaded an oral agreement between the original payee and themselves by the condition of which the makers were not required to pay the principal of the note, but only the interest annually, and that there was a mutual mistake in executing these papers in not inserting this agreement. By way of cross-petition, as a set-off they pleaded that at the request of Alexander Scott they had performed services on his ranch in Lyon county for a period of five years, which services were worth $6200 ; that at the time of the execution of the note and mortgage these services and their value were discussed ; that Scott recognized this claim and agreed that it.should be paid by not requiring the defendants to pay the note. Replies were filed to this pleading.
When the defendants had introduced their evidence, plaintiff filed a general demurrer thereto, which was sustained as to the first defense and overruled as to the second, or cross-petition. It is contended that the court erred in sustaining this demurrer in part, or to the first defense ; than, as the demurrer was general, to sustain it as to the first defense withdrew from the consideration of the jury all the evidence tending to support that defense, much of which was in its nature especially applicable to, and strongly supported, the allegations of their cross-petition. There is no merit in this contention. It is not contended that it would have been error had the court sustained a separate demurrer to such evidence. Where several causes of action or several defenses are pleaded, and on the trial a demurrer is interposed to the evidence in support of any of the several causes of action or defenses, and such demurrer is sustained to the evidence in support of one of them and overruled as to the others, this does not withdraw from the consideration of the jury any evidence tending to support any of the remaining causes of action or defenses. The result is the same as if separate demurrers had been interposed to the evidence of each of such causes or defenses and had been sustained to one and overruled as to the others. All the evidence introduced on the trial remained in the case to be applied by the jury to all issúes submitted to it to which such evidence was applicable.
The second contention is that the court erred in giving the first, second and fifth instructions. The first instruction is a general statement of the issues and the particular contentions of the parties are fully and fairly made. The other instructions of which complaint is made are as follows : •
“2. Now, as to these matters in their order: If the claim of the plaintiff is true, and the claim of the Troutmans is not sustained, your verdict must be for the plaintiff for the whole amount of the mortgage debt, with interest thereon at six per cent, from the time it fell due, to wit, after sixty days after the first interest payment was due and payable thereon and was not paid.”
“5. There is no evidence before you justifying you in considering the question of mutual mistake in the omission of any of the terms of the alleged oral contract from the writing, and hence, you will not consider that question.”
The specific objection is that by these instructions the jury were in effect told to find for the plaintiff. There is no such expression in the instructions, nor can such an inference be fairly drawn therefrom.
It is contended that a part of the. third instruction was erroneous and prejudicial in that it limited the defendants in proving the allegations of their cross-petition to evidence that Scott recognized and agreed to pay such indebtedness in the manner claimed at the time the note and mortgage were executed. This is not a fair or just application of the instruction, in view of the questions to which it was directed. Plaintiff contended that defendants could not contradict the terms of the note and mortgage by oral evidence tending to prove that the conditions therein expressed were only to be partially performed, or that the debt was not to be paid as therein expressed. It was this question the court evidently had in mind when it gave that part of the instruction. However this may be, the court stated the claim of the defendants exactly.
It is claimed that the court erred in excluding certain testimony offered on rebuttal. The record shows that this evidence had all been given in chief. There was, therefore, no error in refusing to permit it to be repeated upon rebuttal.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This proceeding in error was originally supported by a case-made, attached to the petition in error. The case-made was settled and signed without jurisdiction^ and. yielding to that fact, the plaintiff in error substituted a transcript of the record in the district court for the case-made. The errors assigned involve a consideration of testimony and of instructions given and refused. The evidence could be brought upon the record of the district court in no other way than by a bill of exceptions, and no such document appears in the transcript. Therefore, questions arising upon the admission and exclusion of evidence may not be examined. Most of the instructions given and refused can be interpreted only by the evidence; hence, they will not be considered.
One instruction is assailed as imposing a wrong interpretation upon a writing admitted by the pleadings. The instruction uses practically the language of the writing, and ’.declares its true intent.
It is claimed that two instructions are contradictory of each other, but they ate not so. One relates to the conduct of a work of construction, and the other relates to the sufficiency of the completed work to fulfil the purpose for which it was intended, as a result of construction according to a given contract and plan,
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Greene, J. :
This was an action to recover damages for the death of the plaintiff’s minor son, Jesse Buzzard. The defendant was a corporation engaged in mining coal. Jesse Buzzard was working in the mines for it and was called a “coal-pusher.” The coal was lifted from the mine in a cage which was run by steam, by means of a cable attached to the top of the cage and passed to the top of the mine and over a pulley, and thence to the drum in the engine-room, which stood about fifty feet from the top of the mine. It was the duty of the deceased to push small cars of coal from the place where mined into this cage and then pull a wire cord which rang a bell in the engine-room signaling the engineer to hoist the cage.
It was alleged in the petition that one Massengale was the mine-boss, who had charge of all the workmen and directed them in the operation of the mine, employing and discharging whomsoever he chose; that at the time of deceased’s injury Massengale was at the top of the mine with the engineer ; 'that immediately before the injury the deceased had pushed a car into the cage and had signaled the engineer to hoist the same, and while he was waiting for it to be hoisted the mine-boss called from the top of the mine that if there was a car on the cage the pushers should remove it and get into the cage and come up to assist in replacing a car on the dump ¡.that the deceased and another pusher undertook to pull the car from the cage, but because of some defect in the cage or car they were unable to do so, and the deceased entered the cage with a short lever, intending to lift the car, in order that his assistant might pull it out of the cage; that while so engaged, and after they had got the car partially out of the cage, the engineer turned on the steam, thus lifting the cage, by reason of which the deceased was in some way caught between the car and the cage and so injured that he died within a few minutes. The specific acts of negligence charged were that Massengale did not notify the engineer of the instructions given to the pushers, and failed to instruct him not to lift the cage until the pushers had signaled him to do so.
Errors are predicated upon the overruling of the demurrer to the petition and the overruling of defendant’s objection to the introduction of any evidence-under the petition. Without particularizing, suffice it to say that we are of the opinion that the .petition states a cause of action and that no error was committed in these respects.
The court instructed the jury as follows :
“The mortuary table admitted in evidence in this case may be considered by you in connection with all the other evidence adduced for the purpose of determining the probable duration of the life of the deceased, had he not met death by accident or injury. You are instructed, however, that from the evidence adduced herein the plaintiffs can only recover, if at all, during the years of expectancy of the life of the plaintiffs and not for the years of expectancy of deceased in excess of the expectancy of the life of the deceased.”
“ . . . If your general verdict be for the plaintiffs, you may allow them as damages that amount to which you may find them to be entitled for reasonable services of Jesse Buzzard during his minority; also a reasonable amount as the pecuniary benefits they might have reasonably expected to receive from Jesse Buzzard after he should have reached his majority and during the time he should have continued to live. ...”
“In submitting the instructions to you I instructed you upon the question of exemplary damages, and I now instruct you that in a case of this character exemplary damages cannot be collected or allowed by you; that is, damages by way of punishment and denominated by law as ‘punitive damages’ — ‘smart money’ ; the damages allowed by you, if any, will be that amount to which you may find the plaintiffs to be entitled for the reasonable services of Jesse Buzzard during his minority, with a reasonable -amount as the pecuniary benefits they might have expected to receive from Jesse Buzzard after he should have reached his majority and during the reasonable expectancy of the time he might have lived.”
If the plaintiffs were entitled to recover in this action beyond the value of the services of Jesse Buzzard during his minority, the time within which such benefits might accrue is limited to the life of the plaintiffs and is not extended to that of the deceased son. The amount which is recoverable is not capable of exact computation or measurement; it is problematical, depending upon a variety of circumstances and conditions. Nevertheless, the law recognizes the moral obligation of a child after reaching majority to care for his aged, infirm or indigent parents, and recognizes the expectancy of the parents that he will do so, and authorizes a recovery of a reasonable compensation for the negligent deprivation of such' expected support. It will be observed that the first instruction correctly states the law that the plaintiff’s recovery for benefits expected to he received from their son after his majority is limited to the expectancy of life of the plaintiffs, but the second and third state that, in addition to the plaintiff’s right to recover for the loss of the life of their son during his minority, they may also recover such reasonable benefits as they might have reasonably expected to receive from Jesse after he should have reached his majority and during the time he should have continued to live. The expectancy of Jesse, according to the standard mortuary tables, was twenty-eight years longer than that of plaintiffs. Notwithstanding this, the court instructed the jury that the plaintiffs were entitled to recover such benefits as they might reasonably expect to receive from him during the time he should have continued to live, which, according to the tables, would have been twenty-eight years after the plaintiffs are presumed to have been dead. These instructions are clearly erroneous, and, while one states the law correctly, there is no reason to believe that the jury followed that one in preference to the other two, which state the'law incorrectly.
Another question incidentally arises which may become important upon a retrial of this case. We refer to the absence of any evidence tending to show that plaintiffs were in any way depending upon their son for support. This, however, only goes to their right to recover benefits which they might have expected to receive after he should have arrived at majority had he not been killed.
For the error in the instructions the judgment is-reversed, and the cause remanded with directions to-allow defendant’s motion fo.r a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Gkeene, J. :
Henry Jett was informed against under section 2289j)f the General Statutes of 1901, which reads :
“Every person who shall be convicted of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction or punishment, and no other, shall be deemed an accessory after the fact, and upon conviction shall be punished by confinement and hard labor not exceeding five years, or in the county jail not exceeding one year nor less than six months, or by fine not less than four hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in a county jail not less than three months.”
The information was in the following form :
“In the name and by the authority of the state of Kansas, I, A. J. Myers, county attorney in and for the county of Clark, in the state of Kansas, who prosecute for and on behalf of said state, in the district court of said county, sitting in and for the county of Clark, and duly empowered to inform of offenses committed within said county of Clark, come now here and give the court to understand and be informed, that one Henry Jett, at the county of Clark; in the state of Kansas, and within the jurisdiction of this court, on the-day of March, a. d. 1903, then and there knowing that Claude Jett, in the county of Clark and state of Kansas, on or about the 20th day of June, a. d. 1902, had committed a felony, to wit, the crime of rape, by carnally and unlawfully knowing Anna Craig, she being a female woman under the age of eighteen years ■and not his wife, did then and there knowingly, unlawfully and feloniously give aid to said Claude Jett, -with the intent and in order that the said Claude Jett •might escape or avoid arrest, trial, conviction or punishment for the commission of said offense of rape, •and with no other intent, aided the said Claude .Jett in concealing the fact of the commission of said ■offense; and whereas the said Anna Craig had become pregnant by reason of the rape committed by .•said Claude Jett, and was about to be delivered ■ of a child, the said Henry Jett did then and there ¡take and convey, the said Anna Craig from the ■ county of Clark, in the state of Kansas, into the territory of Oklahoma, and did then and there, in a vacant •house near Fort Supply, in Oklahoma Territory, deliver said Anna Craig of a child, it being the result of ■sexual intercourse with said Claude Jett in said act of ■rape, which said child then and there born of said Anna Craig he, the said Henry Jett, took and buried in a sand-hill about one-half mile from Fort Supply, ■Oklahoma, and said Henry Jett did then and there represent to sundry and divers persons that said Anna Craig was the wife of a certain man' surnamed Harris, in the employ of said Henry Jett, and that the pregnancy of said Anna Craig, then and there represented by said Henry Jett to be Anna Harris, had occurred in wedlock and was lawful and reputable, -that the product of conception of said Anna Craig, then and there delivered as aforesaid, was incipient, immature, and diminutive, when, as the said Henry Jett well knew, the child then and there born of said Anna Craig and buried by him was eighteen inches in length and fully developed, and said Heny Jett did introduce the said Claude Jett to sundry and divers persons as Mr. Harris, the husband of said Anna Craig,'and falsely represent that he was tlie lawful husband of said Anna Craig, and was surnamed Harris, and not Claude Jett; and afterward the said Henry Jett did convey said. Anna Craig back to Clark county, Kansas, and cause her to exhibit herself in public places, in order to create the impression that •she had not been .pregnant with sexual intercourse with Claude Jett, and did thereby purposely try to induce the citizens and officers of Clark county, Kansas, to falsely believe that no crime of rape had been •committed upon the person of said Anna Craig by said Claude Jett, and thereby aided said Claude Jett in concealing the commission of said felony, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Kansas.”
The defendant moved to quash the information for the reason that it did not charge him with the commission of any offense. This motion was'allowed and the defendant discharged. The state appeals.
The specific acts charged against the defendant appear to have been done more to save the reputation of Anna Craig than to assist Claude Jett to escape punishment, and the immediate result was to protect her. The only act committed in Kansas was in taking Anna ■Craig out of the state. The allegation in the information explanatory of that act is that she might give birth to the child away from home. In The State v. Doty, 57 Kan. 835, 839, 48 Pac. 145, in construing this ■section of the statute, this court said :
“The character of the aid is indicated by-the particular words used in the commencement of the section, and it shows that it must be some substantial act of personal assistance. It will be observed that the concealing of an offender is first mentioned, and then there is eadded the giving of such offender any ‘other aid,’ and the argument may well be made that the other aid is of a similar character with that particularly specified. It is a familiar rule of interpretation that where particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind with those which precede.”
The acts charged against the defendant do not fall within the statute, under the interpretation there-given,- and we do not think that the information states-an offense.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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Per Curiam:
This was an action in ejectment, the plaintiffs basing their claim upon an old Indian title. It seems probable that the judgment of the district court should be affirmed upon the theory that they are precluded from recovery by reason of laches, under the authority of Dunbar v. Green, 66 Kan. 557, 72 Pac. 243. It appears, however, that the judgment sought to be reviewed was rendered September 24, 1902, when an order was made giv ing plaintiff ninety days in which to serve a case, allowing ten days to suggest amendments, and requiring five days’ notice of settlement to be given, but otherwise making no provision for the time of settlement. The term of office of the trial judge expired January 12, 1903, and although he was his own successor, within the rule stated in Mowery v. Bank, 67 Kan. 128, 72 Pac. 539, he had no jurisdiction to settle and sign the case later than January 12,1903.
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The opinion of the court was delivered by
Smith, J. :
This was ¿n action against the railway company to recover for the loss of 11,200 pounds of wheat, of the value of $114.80,part of a car-load shipped by plaintiff in error from the station of Kanorado, Kan., to Kansas City, Mo., over the line of defendant in error, consigned to Goffe, Lucas & Carkener, commission agents,’ at Kansas City. The action was based on the right to recover given by chapter 100, Laws of 1893 (Gen. Stat. 1901, §§ 5938-5947). Section 6 of the act (Gen. Stat. 1901, §5943) reads: .
"Each railway company operating a railway wholly or partly within the state shall be required to give to any person delivering grain, seed or hay in bulk or in sacks to such company for transportation, at any station entitled to track-scales under this act, a bill of lading, in duplicate, which bill of lading shall state the exact number of bushels or pounds of grain, seed or hay so delivered, to such railway company, by whom delivered, and to whom consigned; and thereafter such railway company shall be responsible to the consignee named in said bill of lading, or to his heirs or assigns, for the full amount of such grain, seed or hay so delivered to such railway company, until it shall show that it has delivered the whole amount of such grain, seed or hay to such consignee or to his heirs or assigns ; provided, however, that if the shortage on any car of grain, seed or hay shall not exceed one-fourth of one per cent, of the amount of grain, seed or hay put in the car, then the railway company shall be deemed to have delivered the whole amount of grain, seed or hay in the car. And in any action hereafter brought against any railway company, for or on account of any failure or neglect to deliver any such grain, seed or hay to the consignee, or his heirs or assigns, either duplicate of such bill of lading shall be conclusive proof of the amount of such grain, seed or hay so received by such railway company."
It will be noticed that the liability imposed on a railway company by this statute is restricted to loss sustained by the consignee. The law in express words makes the railway company "responsible to the consignee named in said bill of lading" for any shortage in the grain transported. Charles F. Weber, plaintiff below, brought the action in his own name. A demurrer was sustained to his petition. He complains that the court erred.
The law on which the right of action depends, in addition to the damages sustained by the loss of grain, permits the recovery of attorneys’ fees, which are demanded in this action. It is agreed that all the grain received by the railway company at Kanprado was transported safely, without loss, and delivered by it to the Kansas City Suburban Belt Railroad Company, a connecting carrier, for delivery by the latter to an elevator in Kansas City, Mo. Section 7 of the law under consideration fixes on the receiving carrier a liability, notwithstanding the shortage was caused by the negligence of a connecting railway, unless all the facts and circumstances of such loss or shortage on the connecting line be fully set forth in written pleadings and affirmatively and fully proved by it. Plaintiff in error demands the application of this section in his behalf and invokes its requirements to defeat the claim made by the railway company in denial of liability, for the reason that the facts and circumstances of the loss on a connecting carrier’s line were not fully set forth in written pleadings filed in the action by defendant below.
We mention the nature of the action and the contention of plaintiff in error to show that his sole claim of right to recover is based on the different sections of chapter 100 of the Laws of 1893, and not on the theory of a common-law liability. This being true, the action must conform strictly to the requirements of the law which affords the remedy. In Sutherland on Statutory Construction, section 371, it is said :
“If a statute creates a liability where otherwise none would exist, or increases a common-law liability, it will be strictly construed. A statute, even when it is remedial, must be followed with strictness, where it gives a remedy against a party who would not otherwise be liable. The courts will not extend or enlarge the liability by construction ; tliey will not go beyond the clearly expressed provisions of the act. Statutes which create a liability in favor of ‘ the widow and next of kin’ of a person whose death has been caused by negligence are of this class. Actions founded on those statutes must strictly conform to them. Such an action cannot be given by implication. The relief or remedy provided is not extended to any other persons than those mentioned in the statute.”
In Rodman v. Railway Co., 65 Kan. 645, 648, 70 Pac. 642, 59 L. R. A. 704, a recovery was sought from a railway company for wrongfully causing the death of plaintiff’s husband. The action was founded on section 422 of the civil code (Gen. Stat. 1901, §4871). It was held that the two years given by the section within which the action must be brought was a condition imposed on the exercise of the right to sue, and ■that the time could not be extended by the pendency- and dismissal of a former action.
The case of Hamilton v. H. & St. J. Rld. Co., 39 Kan. 56, 18 Pac. 57, was an action in this state, under a statute of Missouri, to recover for the death of a person. The right of action was fixed by the statute in the husband or wife of the deceased for six months after the death. After that time the right vested absolutely in the surviving minor children, if there were any. The court said :
“The right thus conferred is a conditional one, and the plaintiffs in such action must bring themselves clearly within the prescribed conditions necessary to confer the right of action.”
To the same effect, see Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331; Miller v. Clark, 62 id. 278, 62 Pac. 664; Ryan et al. v. Ray et al., 105 Ind. 101, 4 N. E. 214.
It follows that, the action not having been brought in the name of the consignees, the only persons authorized to maintain it, there can be no recovery. The fact that the plaintiff below was the owner of the grain cannot affect the question.
It is a well-known commercial usage for shippers to make drafts on their consignees with bills of lading attached and obtain the amounts drawn for at a bank before the receipt of the grain at its destination. The protection of the acceptors of such drafts from loss may have been the legislative purpose in permitting only the consignees, their heirs or assigns, to maintain an action under the statute for shortage. Plaintiff in error cites section 26 of the code (Gen. Stat. 1901, § 4454), which requires that every action be prosecuted in the name of the real party in interest. It has no application. In Rodman v. Railway Co., supra, the general provisions of the statute of limitations were held not to save an action given by special statute which contained in it a limitation inseparable from the right to pursue the x’emedy provided and a part of it.
It is extremely doubtful whether, in view of the decision in Railway Co. v. Simonson, 64 Kan. 802, 68 Pac. 653, 57 L. R. A. 765, 91 Am. St. Rep. 248, there is any vitality left in the statute under consideration. Can it be said that the legislature would have enacted the law with that part of section 6 omitted which makes the bill of lading conclusive proof ,of the amount of grain received by the carrier ?
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiff prosecutes error from a judgment sustaining a demurrer to his petition. The material facts alleged in the petition, which present the question discussed in this opinion, briefly summarized, are that the defendant, a city of the first class, maintains a fire department and fire stations; that plaintiff was in charge of station No. 3, in which were kept a hose-cart and horses for drawing it; that it was his duty to clasp the collar on the horses when they dashed from their stalls to the tongue of the hose-cart upon the alarm of fire; that the floor between where the horses stood and the tongue of this cart, which had been laid with wooden blocks, had become so worn and rotten that a large hole had been made in the runway, which the city had negligently permitted to remain for a long period of time, notwithstanding the fact that the attention of the fire marshal had frequently been called to it and he had repeatedly promised to cause it to be repaired; that the city knew the floor was out of repair and had negligently omitted to put it in order ; that on the occasion of plaintiff’s injury he was in the discharge of his duties when a fire-alarm was turned in and one of the horses made g, dash for the tongue of the hose-cart, where plaintiff was waiting to receive it to clasp the collar .of the harness, the horse stumbled into the hole, falling heavily against plaintiff, which resulted in serious injuries, for which he sought to recover damages in this action.
It is contended that the petition does not affirmatively show that the city had notice of the defective and dangerous condition of the floor, and that it affirmatively shows that the plaintiff assumed the risk of injury which would probably .result from such defective condition of the floor. Neither of these contentions is well taken. In some particulars the petition is not very specific in its allegations, but it isnot fatally defective' in either of the respects men tioned. It is plain that the court below did not sustain the demurrer on either of these grounds.
The important question, and the one to which counsel have directed their attention, is, Can a municipal corporation be made to respond in damages to the plaintiff for injuries sustained through its negligence in not furnishing him a reasonably safe place in which to perform his duties as an employee in one of its fire stations? Non-liability is asserted on the ground that municipal corporations are created by the state to assist in the administration of its laws ; that the maintenance of a fire department is a governmental duty, and in the performance of such duty cities are limited sovereignties, or miniature states, and are exempt from all liability for the misfeasance of their agents. Whether the corporation in this instance was acting as a governmental agency in a public capacity representing the inhabitants of the city, or in its private corporate capacity, is not a material question; in either instance it was acting within the scope of its delegated authority. It possessed the power to provide and maintain a fire department for the protection of the property of the inhabitants, and in this respect it was performing a public duty. In order that this power might be more effectually executed the office of fire marshal was created. The mayor and council were given power to appoint such officer, prescribe his duties, provide for his salary, and control him in the discharge of such duties as were imposed upon him, and hold him responsible for the manner in which he should perform them. Therefore, the fire marshal, while so acting, was the agent of the city and not an officer of.the state.
In determining the necessity for a fire department, the number and location of fire stations, the kind, quality and number of fire-extinguishers, and all matters involving the efficiency of such department, the- council are in the exercise of their legislative power, judgment, and discretion. In the performance of such duties the questions of non-feasance or misfeasance are not subjects of judicial inquiry. Having, however, determined these questions, the execution of the work and the management of its property is ministerial. In determining the locality, width and grade of streets, and in establishing a system of sewers, and the kind and location of the pipes therefor, the corporation exercises its legislative authority; in the one instance as a government instrumentality; in the other, in its public capacity, as benefactor of the inhabitants. In either case the city is liable to property owners for injury to their property occasioned by the negligent execution of the plan.
The case of City of Toledo v. Cone, 41 Ohio St. 149, 163, was an action to recover damages for personal injuries sustained by the falling of an embankment supporting a vault in the city cemetery. The court said :
“We think it is evident from these statutory provisions that the trustees of the cemetery in question' were-elected by the people of Toledo, to take charge, as their agents, of the cemetery property, and acted in that behalf in subordination to and subject to removal by the council of the corporation. The improvement or repair of the city vault, through their agency and that of the superintendent, was not a legislative or governmental act on the part of the city, but was merely the discharge of a ministerial duty, such as the city performs in repairing or improving its streets, sewers, and wharves. It lay within the legislative capacity, judgment and discretion of the city to provide a cemetery for the burial of the dead, a'nd :to build requisite vaults ; but, having become the owner of such property, the city in managing it was held to the same degree of care in preventing damage to others as would be required of natural persons. By section 8 of the act of May, 1869, municipal corporations are made capable of acquiring, holding and possessing property, real and personal. Having such power, there would seem to be no more valid reason for exempting them from liability for private injuries caused by the improper management of their property than for exempting private corporations and natural persons under like circumstances.”
In the case of Donahoe v. Kansas City, 136 Mo. 657, 670, 38 S. W. 571, 574, which was an action to recover damages for injuries sustained by the plaintiff while engaged as a laborer in digging a trench for a sewer, the allegations were that the city and its duly appointed representatives in charge of the work negligently and carelessly failed to brace, shore up and protect the walls of the trench sufficiently to make it a reasonably safe place for plaintiff to work. The court said: ■
“It was a duty which defendant owed to plaintiff to furnish him a reasonably safe place in which to work. The superintendent of streets as well also as the foreman in charge of the work knew or might have known, had they discharged their duty, the unsafe condition of the bracing in this instance. ‘This duty is personal to the master, and if entrusted to a foreman, the negligence of the foreman is the negligence of the master.’ ”
The court stated that the building of a system of sewers is for the private benefit of the corporation, and this may have had some influence upon the court in determining the question of the liability of the city. This question will be referred to later.
, Mr. Jones, in his work on Negligence of Municipal Corporations, section 141, says :
‘‘But as soon as the corporation has determined to construct a public work, it enters upon an undertaking which, in all its details, should be subordinated to the rule requiring the use of care, for the work is then ministerial. There has been much discussion whether a municipal corporation will be liable for a defect in the plan of a public work, and many authorities have held broadly that it would not. The word ‘plan/ however, in the cases, as is clearly shown in a recent case in the United States supreme court (Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923, 30 L. Ed. 75), where this question was presented, is ordinarily used to describe the general plan or system of work, and where it is so used, nothing more would seem to be decided than that the general features of the system of drainage to be adopted are to be settled by the corporation, and cannot be reviewed by the courts. Some authorities have gone much further than this, but is believed to be contrary to" principle and the weight of authority to maintain that, where in the performance of a public work, there is any breach of the duty to exercise care, an action by one who is damaged will not lie.”
In McClure v. City of Red Wing, 28 Minn. 186, 194, 9 N. W. 767, it was said:
‘ ‘ The duty of providing drainage or sewerage is in its nature judicial or legislative, and consequently a municipal corporation is not liable for mere non-action in failing to perform it. But that is not this case. It has also been held that, in adopting the general plan of an improvement, a municipality performs a legislative duty, whereas the manner of executing it is a ministerial one. In the case at bar, if it turned upon whether the duty was judicial or ministerial, we think the correct rule to apply would be that, in deciding upon the expediency of laying out this street, or upon the route thereof to be adopted, or the grade to be established, the city was exercising judicial duties, for errors of judgment in the performance of which they would not be responsible ; but, having determined these matters, and having decided it expedient to obstruct the natural channel of these waters, and .to divert them into another and artificial channel, then, in executing and carrying this out, including the construction of the sewer and fixing, upon its size or capacity, they were exercising purely ministerial duties, in the performance of which they are held to the exercise of reasonable care.”
In Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923, 924, 30 L. Ed. 75, the court, used this language:
“The duties of the municipal authorities, in adopting a general plan of drainage, and determining when and where sewers shall be built, of what size and at what level, are of a quasi-judicial nature, involving the exercise of deliberate judgment and large discretion, and depending upon considerations affecting the public health and general convenience throughout an extensive territory ; and the exercise of such judgment and discretion, in the selection and adoption of the general plan or system of drainage, is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land. . . . But the construction and repair of sewers according to the general plan so adopted are simply ministerial duties; and for any negligence in so constructing a sewer, or keeping it in a repair, the municipality which has constructed and owns the sewer may be sued by a person whose property is thereby injured.”
The same principle was announced in Thurston v. City of St. Joseph, 51 Mo. 510, 11 Am. Rep. 463; Judd et al. v. Hartford, 72 Conn. 350, 44 Atl. 510, 77 Am. St. Rep. 512; McCombs v. The Town Council of Akron, 15 Ohio St. 474; Barton v. The City of Syracuse, 36 N. Y. 54; Jenney et al. v. City of Brooklyn, 120 id. 164, 24 N. E. 274.
There is a line of authorities which hold that municipal corporations are liable for the negligent performance only of such ministerial public duties as áre imposed upon- them by law, but not for the negligent performance of assumed duties which are permissive only. To this doctrine we do not agree. The performance of public duties which are imperative upon the corporation, as well as those which are merely optional, is for the same general purpose— the general welfare of the community. When a municipal corporation assumes the performance of a public duty which was permissive only and enters upon the discharge of such duty, and through the negligent performance thereof by its authorized agents one is injured either in person or property, the corporation-cannot escape liability by saying that the performance of this duty was not imperative. The principle here followed is well stated in Tindley v. Salem, 187 Mass. 171, 50 Am. Rep. 289, and the reasoning therefor we think sound.
Many authorities may be found among the adjudicated cases where the liability of municipal corporations was based upon, and would seem to be limited to, instances where the duty negligently performed lay in the management of property for which the corporation derived an immediate income. Such distinction cannot be sustained by reason. The liability springs from the duty which is due from every person, whether natural or artificial, to exercise such reasonable care in the conduct and management of his property t.hat it will not unnecessarily result, in injury to another. A municipal corporation in control of public property is .not exempt from, this rule when discharging a ministerial duty. Mr. Jones, at section 150 of his work on Negligence of Municipal Corporations, says :
“The obligation to exercise care does not arise between individual because one pays money to another and is therefore entitled to its exercise. It springs, as has been said, from the right of personal safety, and is wholly removed from the question of pecuniary profit. So between corporations, whether public or private, and individuals, the duty is not dependent on the payment of money. It comes into existence from the same right of personal safety. And it is not consistent with principle to hold that a duty exists to exercise care in respect to remunerative public property, but that no such obligation arises in respect to public property from which no income is derived.
“Moreover, the weight of authority does not justify a distinction of this character. And an examination of the cases upon this question will sustain the conclusion that municipal corporations are responsible in damages for all injuries occasioned by their negligence in the management or care of public property, irrespective of the question whether an income is derived from it.”
In the care and management of the fire station the city was performing a purely ministerial duty. It was incumbent upon it to furnish its employees in charge of this property a safe place in which to work, and if the plaintiff was injured through the negligence of the city’s agents in failing to perform this duty it was liable for such injuries.
The judgment of the court below is reversed, with instructions to overrule the demurrer to the petition.
All the Justices concurring. | [
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Per Curiam:
On August 31, 1895, Daniel Ensign executed and delivered to D. B. and S. R. Park a written lease to three quarter-sections of land. The tenancy was to commence March 1, 1896, and terminate March 1, 1897. The lessees, to evidence the amount of rent to be paid, executed to Ensign two notes, one for $300 due December 1, 1896, and another for $600 due March 1,1897, both drawing eight per cent, interest from maturity. The first note was paid in full, and on March 1,1897; defendants below paid $367.90 on the $600 note. This action was brought to recover the balance due. By way of counter-claim, defendants below pleaded that they rented the land for stock-raising purposes, which Ensign knew; that the landlord permitted the fences around the land to be torn down, depriving the tenants of the use of the land; that Ensign refused to rebuild the fences or permit defendants to do so, and agreed that he would pay the lessees all damages that they might sustain by reason of the removal’ of the fences, claiming that the fences had been unlawfully and forcibly removed from the land by the township officers, for which he was entitled to damages and would sue the county therefor, and would pay and allow defendants all damages sustained by them. Defendants were given judgment against plaintiff for $167, and he brings error.
The jury found that Ensign made the promise to defendants to pay the damages suffered by them. Many points are raised and discussed in the brief of the counsel for plaintiff in error, but the pivotal question in the case was whether Ensign made the promise alleged, and, relying thereon, defendants did not repair the fences, and suffered damages thereby. The question was submitted directly to the jury, who found against the plaintiff below. The agreement was founded on a sufficient consideration. (Spencer v. Taylor, ante, p. 493, 77 Pac. 276; Clark, Contr. 171.)
The claim of defendants below was based on a new contract outside and beyond the terms of the lease. Mr. Burgess was not disqualified as a witness for defendants. He testified that at the time of his conversation with Ensign he was not employed by him as an attorney, but had always been against him. We have given consideration to the rulings of the court in admitting testimony offered by defendants and find no error in such rulings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In his lifetime John Cunningham was the owner of a tract of land in Shawnee county. When he died he was a widower, and he left no will. His heirs at law were his married sons, John W. and Christopher, and his daughter, Martha, married to Mitchell West. These children entered into an amicable arrangement for a division of the land their father had left them, and for the purpose of consummating such arrangement they met, according to' a previous appointment, at the office of an attorney at law in the city of Topeka and exchanged deeds which he had prepared, to the end that each one should receive from the others a deed for a two-thirds interest in the land which he was to take in severalty. One of these deeds was made to Mitchell West instead of to Martha, his wife. This deed was placed of record, and the respective parties entered upon the separate possession and enjoyment of their respective portions of their patrimony. Mrs. West and her children occupied the land conveyed to her husband, with him, as their homestead, until the time of her death, which occurred in 1885. She died intestate, leaving two minor children, the plaintiffs in the district court. Two other children had died in infancy some years before.
At the time of her decease Mrs. West was the undisputed owner of one-third of the land she occupied, since that interest was not affected by the deed of her brothers to her husband. Under the law of descents and distributions, as it then stood, Mitchell West inherited one-half of this one-third interest as her surviving husband, and also inherited one-half of the other half of such one-third as the heir of his two-deceased children. The plaintiffs inherited the remaining one-twelfth of the land.
In February, 1895, Mitchell West and a second wife made a warranty deed of the land to Daniel Becker, the defendant in the district court, and delivered its full possession to him. The plaintiffs, from birth until the time the land was sold, resided upon the premises with their father. At the date of the sale one of them had barely reached her majority, while the other was some three years -younger. They subsequently married brothers, and in the year 1901 brought suit to recover possession of the land, not only claiming the one-twelfth interest which unquestionably belonged to them, but asserting as well that their mother was the owner of the entire interest described in the Cunningham deed to Mitchell "West; that they inherited a portion of this interest from her; and that the defendant purchased with notice of their rights. Upon a trial the jury awarded the plaintiffs one-twelth of the land and judgment was rendered accordingly. Error is assigned with respect to the conduct of the proceedings in the district court.
After the jury had deliberated for some time upon the case they asked for further instruction upon a proposition of law. The court'responded with a full exposition of the doubtful matter, and it is now urged that the court had no authority to instruct at length at that stage of the proceeding. The instruction was not a virtual substitute for the charge already given, was not given in a manner calculated to mislead the jury, and did not leave them to infer that they should certainly find in a particular way for one of the parties. Hence, it does not fall within the ban of the-case of Foster v. Turner, 31 Kan. 58, 1 Pac. 145. The court has a large discretion in the matter of giving additional instructions after the jury have retired for deliberation, and may supplement the original charge whenever confident that 'the ends of justice will be best subserved by doing so. A judicious exercise of the right tends to the sure and efficacious administration of the law. Even in a criminal case the court may, of its own motion, give the jury additional instructions to meet any difficulty which may present itself to their minds (The State v. Chandler, 31 Kan. 201, 1 Pac. 787), and only in case of abuse, resulting in injury to some substantial right, will an exercise of such discretion be reviewed.
The evidence introduced to account for the appearance of Mitchell West’s name in the deed was very-unsubstantial and unsatisfactory. So much either of uncertainty or of improbability attached to every explanation offered that it was evident that the jury might be compelled to disregard them all, and view the case as one in which a husband is found in the unexplained possession of a deed apparently investing him with title to land allotted to his wife as her portion of her deceased.father’s estate. By using the knowledge which the jury possessed in common with mankind, it was possible for them to draw a rational conclusion that Mrs. West did understand and assent to the form of the deed as it was actually prepared, signed, delivered, recorded, and preserved. 'But it was not possible for them to say whether Mrs. West intended to give the land to her husband, or whether it was understood that he should hold it for her or for her infant daughters or for some other purpose. Under these circumstances it was of the utmost importance that the jury be instructed fully and accurately with reference to the- interpretation the law itself would place upon the transaction, in the absence of explanatory facts.
The court said that,prima facie, the deed to Mitchell West was what it purported to be upon its face, and was made to the person intended; that, unexplained, the result of the transaction showed what it was, and that, prima facie, the grantee in the deed was the owner of the property, because all transactions are presumed to be rightful and honest and fair. This instruction ignored the conceded fact that the property dealt with was derived by Martha West from her father by descent, and that upon segregation it became her sole and separate estate, not subject to the disposal. of her husband or liable for his debts. (Married-woman’s-property act, Gen. Stat. 1901, § 4019.) In such cases the law is now well settled that the husband is presumed to hold the land in trust for his wife’s benefit, in the absence of proof that she intended it as a gift to him. (Stickney v. Stickney, 131 U. S. 227, 9 Sup. Ct. 677, 33 L. Ed. 136; Grabill v. Moyer et al., 45 Pa. St. 530; Bergey’s Appeal, 60 id. 408, 100 Am. Dec. 578; Adoue v. Spencer, 62 N. J. Eq. 782, 49 Atl. 10, 56 L. R. A. 817, 90 Am. St. Rep. 484; Jones v. Davenport, 44 id. 33, 46, 13 Atl. 652; Sykes v. City Savings Bank, 115 Mich. 321, 73 N. W. 369, 69 Am. St. Rep. 562; Wales v. Newbould, 9 id. 45, 64; Chadbourn v. Williams, 45 Minn. 294, 47 N. W. 812; McNally v. Weld, 30 id. 209, 14 N. W. 895; Denny et al., Executors, v. Denny, 123 Ind. 240, 23 N. E. 519; King, Adm., v. King, 24 Ind. App. 598, 57 N. E. 275, 79 Am. St. Rep. 287; Jackson v. Kraft, 186 Ill. 623, 58 N. E. 298; Patten v. Patten, 75 id. 446; Toms v. Flack, 127 N. C. 420, 423, 37 S. E. 471; Smyley v. Reese, 53 Ala. 89, 101, 25 Am. Rep. 598; Houston v. Clark, 50 N. H. 479; Berry v. Wiedman, 40 W. Va. 36, 20 S. E. 817, 52 Am. St. Rep. 866.)
By the adoption of the married-woman’s-property act it was intended, primarily, that the law should be changed rather than that the conduct of husbands and wives should be greatly altered. The law was designed to secure to the wife, without additional effort or precaution on her part, that which before, under the same circumstances, might have become her husband’s because of his marital rights or because of her incapacities ; and it would amount to a virtual defeat of one of the beneficent purposes of the statute if the wife were obligated to take security from her husband whenever he should receive for any purpose a por tion of her separate property. Therefore, in a contest the law will not permit the husband, or those claiming under him, to rest with the production of the ordinary indicia of title—the possession of goods, of money, of promissory notes properly indorsed, of bonds payable to bearer, of shares of stock duly assigned, or of deeds of land—but will require proof of a gift or of a purchase for value.
The law was clearly perceived and forcefully stated by Mr. Justice Strong, of the supreme court of Pennsylvania, in a case relating to personal property :
“When the act of assembly declares, as it does, that all property, real, personal, and mixed, which shall accrue to any married woman during coverture, by will, descent, deed of conveyance, or otherwise, shall be owned, used and enjoyed by such married woman as her own separate property; when the leading purpose of the act is to protect the wife’s estate by excluding the husband, it is impossible for'us to declare that the mere possession of it by the husband is proof that the title has passed from the wife to him. After it has been shown, as it was in this case, that the property accrued to the wife by descent from her father’s and brother’s estates, the presumption necessarily is that it continued hers. In such a case, it lies upon one who asserts it to be the property of the husband, to prove a transmission of the title, either by gift or contract for value, for the law does not transmit it without the act of the parties. If mere possession were sufficient evidence of a gift, the act of 1848 would be useless to the wife.” (Grabill v. Moyer, supra.)
In the case of Adoue v. Spencer, supra, the rule was stated to be as follows :
■ “The burthen is on the wife to establish that her husband took and used her separate estate ; but when that fact is established, whether such taking was with or without her consent, the burthen then shifts, and those claiming that such taking and use was by gift of the wife must establish such gift to the husband.”
And the subject was summarized in that case in the following manner :
“Since 1848, which was about the year of, the beginning of the statutory creation of the wife’s separate property rights, the trend of the decisions in all the states has been toward the rule here contended! for. It can safely be said that, with scarcely an exception, the supreme court of the United States andl the courts of last resort of all the states have held that-as to the principal of the wife’s separate estate, taken into the possession of a husband and used by him, he- or his personal representative is bound to account to her, and that to sustain a refusal to so do, or to relieve from equitable liability to so do, the burthen is-on him to establish that he received such property as-a gift from her. His mere possession of it will not imply such a gift any more than it would from a like-receipt from any other person. There appears no good' reason either in law or morals why such should not be the rule.”
It is true the law still has regard for the unity of' husband and wife, and while it permits, it does not-compel, separate estates in property, and there is-nothing to prevent the wife from giving her property to her husband or from using it for the benefit of the-family. But if husband and wife be one, the husband may no longer arrogate to himself the right to be that one, and the wife should not be held to have given him her separate estate unless an intention to give-appear.
In determining the question of an intent to- give-some courts insist that the transaction should be scrutinized with great care, and that the husband should show by the clearest evidence that a gift was freely intended and deliberately made. (Boyd v. De La Montagnie, 73 N. Y. 498, 27 Am. Rep. 197.) This is a survival of the presumption of undue influence under the common-law doctrine that terror of her husband is a married woman’s natural felicity,' and that coercion and domination of a woman by a man are the ■certain signs of connubiality. In other jurisdictions but slight evidence is required to show a gift, and upon proof of acquiescence by the wife in the use of her property by her husband for a considerable period of time the law presumes a gift. This is a survival of the theory that everything the wife does not keep chained the rapacious husband may appropriate.
The question of an intention to give is one of fact. It may be established by direct or by circumstantial ■evidence. The relation of the parties should be duly considered. The freedom of the wife to supply the wants of the family or to aid the enterprises of her husband, the circumstances under which he obtains, uses, manages or disposes of her property, her acquiescence in his conduct, the control which she retains, the lapse of time, her failure to call him to account, and many other facts all bear upon the question, but its determination in an action at law is for the jury. (Roberts v. Griffith, Administrator, 112 Ga. 146, 37 S. E. 179; Martin v. Jennings, 52 S. C. 371, 37 S. E. 807; McLure v. Lancaster, 24 id. 273, 58 Am. Rep. 259; In re Schmidt’s Estate, 56 Minn. 256, 57 N. W. 453.) In Roberts v. Griffith, supra, the syllabus reads :
“Where in the division of her father’s estate a married woman was entitled to certain lands, and her husband insisted that the deed thereto by the other heirs should be made to the husband and wife jointly, and the wife assented ; and where the evidence shows that, after the deed was so made, both of them occupied the land, but’ that the husband never claimed ownership of any part of or interest in the land, whether the wife, by assenting to the naming of her husband as one of ther grantees in the deed, intended to give him a half-interest in the property, or merely assented to his demand as a caprice on his part and without intending it as a gift, was a question for the jury and ..not for the judge. It was therefore error to hold that the above facts constituted a gift, and to direct a verdict accordingly.”
A single statement made arguendo in the opinion in the case of Hunt v. Spencer, 20 Kan. 126, might be taken to warrant a presumption of gift under certain exceptional circumstances, but an examination of the decision as a whole plainly shows that it was based upon a preponderance of evidence, contradictory of any purpose on the part of the wife ever to reclaim her funds. It was said :
“Now the facts as found in this case -exclude the idea of any loan.- They would tend strongly in the same direction if the parties were strangers, and not husband and wife. There was no account or statement of indebtedness, no agreement or understanding that it should be treated as a loan, or ever repaid. If the parties did not consider it a loan, why should the law be now invoked to so regard it ? it is evident that the wife permitted the husband to take and use this money, not with the idea of his having a separate estate and separate interests, and of making a loan to him, but regarding her interests and his as one, and in furtherance of that single interest, and to promote the common good of the family.”
Since weight of evidence and not a presumption controlled the decision, it is in harmony with the well-settled and modern' doctrines of the law.
In the case at bar the rights of creditors are not involved, and could scarcely arise, because the land was occupied as a homestead until it was sold to the defendant. Of course, the plaintiffs cannot recover without proving to the satisfaction of a jury that the defendant purchased in defiance of notice of their rights.
The district court instructed-the jury correctly upon the law of descent as it existed prior to 1891, and the ■case of Dayton v. Donart, 22 Kan. 256, declares that •the title to a homestead descends in the same manner as does the title to other real estate, subject only to the right of occupancy by those entitled to the homestead privilege. Therefore, the assignments of error »upon those matters are not well taken.
However, for the error in the instruction relating do the presumption attending the West deed, the judgment of the district court is reversed, and the cause is ¿remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
Clara L. Simon brought this action in the district court of Nemaha county against Adam Simon, her father-in-law, for an accounting, and recovered a judgment for $785.20. George 0. Simon, the son of defendant and the husband of plaintiff, died in Colorado, leaving a large amount of personal property, mostly cattle and horses, which he bequeathed to his wife. Defendant undertook to care for and dispose of this personal property for plaintiff and account to her for the proceeds. , It was claimed by plaintiff that defendant failed to account to her for a portion of the proceeds of the sale of this property, and it was to compel an accounting and to recover a judgment for the balance found due that she commenced this action.
The case was first sent to a referee, who was ordered to make findings of fact and conclusions of law, and report the same to the court. The referee found and reported defendant indebted to the plaintiff in the sum of $518.15, as a balance on account of the moneys received by him in the conduct of her business ; and found further that the obligation was barred by the statute of limitations, and denied plaintiff a recovery. Thereupon the court rendered judgment against plaintiff for costs. Subsequently plaintiff filed a motion for a new trial upon the ground of “error of law occurring at the trial,” and upon the further ground that the judgment and finding were not sustained by sufficient evidence and were contrary to law. The court, upon the hearing of this motion, granted plaintiff a new trial, and of this ruling defendant complains.
It is contended on the part of defendant that the report of the referee, attached to and forming a part of the record, discloses no error of law occurring at the trial and excepted to by the plaintiff. In this contention he is correct. It is claimed that this was the only ground upon which the court could have made its order granting a new trial. It is urged that the record discloses that the court had before it, upon the consideration of the motion, none of the evidence upon which the referee made his findings of fact and conclusions of law, and for that reason it could not have reviewed the report of the referee upon the question of the sufficiency of the evidence. The record before us will not bear out that construction. It does show that no evidence was offered by either party upon the hearing of the motion, but it does not' show that the evidence taken before the referee was not before the court for consideration in passing upon the motion. Although this evidence is not found in the record, we must presume that it was before the trial court, and the record fully bears out this presumption. We are not at liberty to presume that the trial court committed error in granting a new trial. It may rightfully exercise a large discretion in the matter of granting or refusing a new trial, and this court will not review its ruling thereon unless satisfied that it was wholly unwarranted and an abuse of its discretion (Investment Co. v. Hillyer, 50 Kan. 446, 31 Pac. 1064; Ireton v. Ireton, 62 id. 358, 63 Pac. 429); particularly in a case where it is claimed that the court committed error in granting a new trial.
The principal controversy in the district court was whether or not the claim of plaintiff was barred by the statute of limitations. Trial was had without a jury, and the court made special findings of fact. Whether or not plaintiff was barred from a recovery depended upon facts established by conflicting testimony. It was left to the court to weigh this conflicting testimony and determine these facts; and also to determine, upon conflicting testimony, the amount of plaintiff’s recovery, many items of which were in dispute. There was some competent evidence to support every material finding, and the facts found by the court were sufficient for predicating its judgment.
Complaint is made that the court failed to make specific findings upon certain items in controversy, but, instead, found in the aggregate. A trial court is not required to make findings of immaterial facts, or to make findings of material facts in greater detail than is necessary to enable a reviewing court correctly to determine the questions of law involved in the case. In this case, however, it does not appear that defendant subsequently directed the attention of the trial court to its failure to make the specific findings requested. (Briggs v. Eggan, 17 Kan. 589.) Inasmuch as this was not done, the failure of the court to comply with the request will not be reviewed by this court. Other errors assigned are immaterial.
The judgment of the trial court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This was an action to recover on a fire-insurance policy in which judgment was rendered for plaintiff. The defendant’s demurrer to plaintiff’s evidence was overruled, and the court, at the close of the evidence, refused to instruct the jury to find for the defendant. These are the first two errors alleged. They involve but one question, which is whether the failure of plaintiff to make proof of loss within sixty days after the fire forfeited his policy. It is contended that by the condition of the policy the failure on the part of the assured to make such proof within that time forfeited the policy. It may be pertinent to remark that proof of loss was made after sixty days, but before the action was brought, and that the action was brought within the time limited by the policy. A forfeiture is never declared by a court unless it is plainly and specifically provided for in the policy. The policy involved in this case does not declare that a forfeiture shall take place if proof of loss be not made within sixty days from date of the destruction of the property; it provides that proof of loss shall be made within that time, but does not declare that a failure to perform such condition shall 'work a forfeiture of plaintiff’s right of action.
The insurance company is a Minnesota corporation and the form of its policy is provided by the laws of that state. This question arose in the supreme court of that state upon the same form of policy sued on in this action. (Mason v. St. Paul Fire & Marine Ins. Co., 82 Minn. 336, 338, 85 N. W. 13, 83 Am. St. Rep. 433.). In that case it was said :
“ It is very generally held by the authorities in cases where this question has been presented, that unless the policy provides a forfeiture, or makes the service of proofs of loss within the time specified therein a condition precedent to the liability of the company, the time within which .such proofs are required to be furnished is not of the essence of the contract. Where no forfeiture is provided by the terms of the contract, and' the service of proofs of loss within the specified time is not made a condition precedent to the liability of the company, the effect of such failure is simply to postpone the day of payment.”
On page 340 the court said :
“But the policy before us contains no provisions which will justify a holding that a strict compliance therewith in this respect is essential, and the matter must be referred to the legislature to consider and adjust by proper amendment to the standard-policy law, if such amendment shall be deemed just and equitable.”
We think this is a correct interpretation of the policy, and that a forfeiture did not follow by reason of the neglect to make the proof of loss within the sixty days.
It is contended that the court erred in refusing to instruct the jury, in effect, that if the plaintiff’s residence was destroyed by fire through his own negligence he could not recover. It was said in Phœnix Ins. Co. v. Sullivan, 39 Kan. 449, 451, 18 Pac. 528, that “insurance policies are taken out to guard against the results of negligence and carelessness.” It is not a defense to an action on an insurance policy to show that the property was destroyed through the plaintiff’s negligence, unless such negligence was wilful or was of such degree as to amount to fraud.
It is also contended that the court erred in instructing the jury that under the pleadings and evidence the plaintiff was entitled to recover, unless the jury should find that the house, at some time during the life of the policy, had remained unoccupied as a dwelling for a period of ten days ; that this instruction took from the consideration of the jury two important questions—the one concerning the proofs of loss, and whether the assured by his own negligence caused the'fire which destroyed his property. As to the first question, there was no contention that proofs of loss were not in fact made, and the cause was litigated on the part of the defendant upon the theory that, such proofs not having been made within sixty days, the policy was forfeited. As to the second question, the answer did not charge that the negligence amounted to wilfulness or fraud on the part of the assured; nor did the evidence tend to prove any such degree of negligence.
No error was committed by the trial court, and the judgment is affirmed.
All the Justices concurring. | [
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'The opinion of the court was delivered by
Atkinson, J. :
George Broderick died intestate at Maryville, Mo., on the 13th day of April, 1902, leaving his minor daughter, Grace Edna Broderick, his only heir. At the time of his death he was the holder ■of a beneficiary certificate issued by the Ancient Order ■of United Workmen of Kansas for $2000, in which his brother, Charles Broderick, was named as beneficiary. The order refused to pay the amount of the ■certificate to the beneficiary, for the reason that the guardian of the minor child of deceased made claim thereto. Charles Broderick, as beneficiary, then com menced an action against the order to recover upon the certificate,, and made the minor, Grace Edna. Broderick, a party defendant. It was averred in plaintiff’s petition that the minor claimed some interest in the certificate, the nature of which was to plaintiff unknown, and it was asked that the claim of the minor be adjudged null and void. By stipulation of the parties to the action, the $2000 in controversy was paid into court and the order discharged from further liability.
The minor, through her guardian ad litem, answered, in substance, that she was the sole surviving-heir of George Broderick, deceased; that the certificate in issue first named her as beneficiary; that, at-a time when the body of the assured was enfeebled by disease and his mind weakened by the excessive-use of opiates, plaintiff fraudulently procured him to change the beneficiary, and caused plaintiff to be-named as beneficiary therein in place of her. It was also averred that, among other inducing causes, was the representation on the part of plaintiff to the assured that the proceeds of the certificate, if he were made beneficiary therein, should be by him applied and used for her care and education; that, in fact,, plaintiff never so intended, but did intend to appropriate the same to his own use ; that for the reasons stated the certificate was null and void; that she was entitled to the money paid into court. The court placed the burden of proof upon the defendant, and when she had rested -her case it sustained a demurrer to her evidence. For this ruling error is assigned.
There was evidence that at the time of the change of beneficiaries George Broderick was an invalid and continued such to the time of his death; that his mind was weakened from the excessive use of opiates ;; but there was no competent evidence tending to show any inducements fraudulently made by plaintiff to the assured, which induced him to change the beneficiary. There was also evidence that at the time the change was made George Broderick was not physically able to provide for himself and daughter and was without means to pay the dues and assessments necessary to continue the certificate in force ; that he and his daughter were provided with a home by his brother, Charles Broderick ; that within a short time prior to his death the attention of George Broderick was directed by relatives and friends to the matter of causing his daughter again to be made beneficiary in the certificate, and he expressed himself as satisfied with the situation as it then was. All of this evidence tended to weaken and discredit the position of defendant.
• It is urged that it was unnatural, and for that reason improbable, that the father would, without the fraudulent inducements alleged to have been made, have changed the beneficiary from his infant child to his grown brother; that the inference arising therefrom was sufficient evidence to go to-the jury upon the question that fraudulent inducements had been made by plaintiff to the assured. This inference, of itself, was not sufficient to go to the jury for consideration without some evidence tending to prove the averments of defendant’s answer that fraudulent inducements had been made.
There having been no competent evidence tending to establish fraudulent inducements as averred in defendant’s answer, there was no error in the court’s sustaining the demurrer, and the judgment will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This is an original proceeding in habeas corpus. On the 8th day of September, 1903, the petitioner, John Bell, who had appeared as a witness before the district court of Shawnee county, pursuant to subpoena, refused to answer certain questions in a proceeding or investigation in that court concerning the existence of combinations of coal operators in violation of the “antitrust law” (Laws of 1897, ch. 265; Glen. Stat. 1901, §§7864-7874), and was adjudged guilty of contempt and committed to the county jail of Shawnee county until he-should be willing to answer the questions propounded to him, but not beyond a period of thirty days.
Petitioner charges that he is illegally restrained of his-liberty by the sheriff of Shawnee county for the reason that chapter 265 of the Laws of 1897, under which this proceeding was had, is in violation of the fourteenth amendment to the federal constitution, in this, that it deprives one of liberty without due process of law; that it takes property without due process of law; and that it denies the equal protection of the law; all of which provisions are contrary to the guaranties of said constitutional amendment. It is also charged that to require petitioner to answer the questions propounded to him, his refusal so to do having resulted in his being adjudged guilty of contempt, was to deprive him of the rights, privileges and immunities guaranteed by section 10 of the bill of rights. This case arises out of the same proceeding, and involves-the same questions, as The State v. Jack, ante, page 387, and that decision is decisive of this one.
The petitioner should have answered the questions-asked him upon the inquiry, and, hence, he will be remanded. | [
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The opinion of the court was delivered by
Cunningham, J. :
This was an action by defendant in error upon a policy of insurance issued by plaintiff in error. The plaintiff below had judgment. The only error here counted upon was the sustaining of a demurrer to one of the defenses contained in the answer of the insurance company. If this demurrer was properly sustained—that is, if the defense demurred to did not state any defensive matter—the judgment of the lower court must be affirmed.
' The contract of insurance counted upon was contained more particularly in a written and printed slip attached to the policy issued, such slip, so far as material, being as follows :
“$400.00 on their frame building and additions, used principally for boiler, engine, crusher and jig room, including foundations, hoister house, derricks,platform approaches, tramways, tailing spouts and supports, iron rails, water-tanks and flumes.
“$200.00 on engines and boilers, immediate connections, including foundations and settings, breeching, smoke-stacks, brick boiler walls, supply pumps, and heaters.
“400.00 on fixed and movable machinery of every kind (except engine and boilers), including spur-wheel, crushers, rolls, jigs, screens, pumps, hoister engines and connections, foundations and settings, spouting, shafting, gearing, belting, posts, frames, elevators and connections, pulleys, hangers,- idlers, tools, implements, rope, cars, tubs, oils, fuel, and supplies.”
“Permission granted to run day and night, to make additions, alterations, and repairs ; to use coal-oil for lights, and to. cease operations, provided same shall not remain idle or inoperative to exceed 30 days, at any one time, without notice to this company and consent indorsed hereon ; also to keep in premises one barrel each of cylinder, black, lard and coaj-oil.”
“This slip is attached to and forms part of policy No. 970375 of the Queen Ins. Co.”
In the body of the policy was this further provision :
‘ ‘ This entire policy, unless otherwise provided by agreement indorsed thereon or added hereto, shall be void ... if the subject of insurance be a manufacturing establishment and ... it cease to be operated for more than ten consecutive days.” '
The defense to which the demurrer was sustained was in the following language :
“ Defendant says that it was provided under said policy that said plant might cease operations, provided the same should not remain idle or inoperative to exceed thirty days at any one time. Defendant alleges that about July 1, 1901-, the same became idle and inoperative and so remained from that time up to the time of the fire [December 3, 1901] , without notice to defendant and consent indorsed on said policy, by reason whereof defendant says plaintiff is not entitled to recover.”
The claim of the plaintiff in error, therefore, is that the last clause contained in the slip, wherein permission is granted to cease operations provided the mill does not remain idle or inoperative to exceed thirty days at any one time without notice, creates a forfeiture ipso facto of the policy if the insured property so remain idle or inoperative. It must be noted that there is here no such specific provision. The language of the provision is not that forfeiture shall follow such unauthorized idleness. If we are to declare a forfeiture we must extend the express terms of the contract. This we may not do. Insurance companies are paid for protection. Their contracts are to be construed, when construction is permissible, most strongly against them and in favor of the assured. Forfeitures are not favored, and ordinarily will not be found or enforced unless specifically and definitely provided for in the contract. (English v. Williamson, 34 Kan. 212, 216, 8 Pac. 214; Hartley v. Costa, 40 id. 552, 559, 20 Pac. 208.) This principle nowhere finds more ready application than in contracts of insurance. (Coleman & Co. v. Insurance Co., 49 Ohio St. 310, 31 N. E. 279, 16 L. R. A. 174, 34 Am. St. Rep. 565; Murray v. Home Benefit Life Ass'n, 90 Cal. 402, 27 Pac. 309, 25 Am. St. Rep. 133; The Phenix Insurance Company of Brooklyn v. Tomlinson et al., 125 Ind. 84, 25 N. E. 126, 9 L. R. A. 317, 21 Am. St. Rep. 203.)
As an aid to construction in such matters the courts note that where some of the clauses in a contract provide specifically for their forfeiture in case of the violation of their terms, and others omit this specific provision, such omission will be considered significant ; and in cases where the clause was omitted courts much more readily come to the conclusion that no forfeiture was intended. If was said in Steele v. Insurance Co., 93 Mich. 81, 53 N. W. 514, 18 L. R. A. 85:
“This omission in an instrument replete with clear and explicit declarations of forfeiture is worthy of note. The presence of the declaration of forfeiture in every other instance and its absence in this is clearly not an oversight.”
So here, a forfeiture is elsewhere in the policy specifically declared in case of a manufacturing establishment when it ceases to be operated for more than ten. consecutive days, but no such specific provision as to the property insured is found in the slip. We do not think that the clause contained in the slip, referring to the insured property’s remaining idle or inoperative creates a forfeiture, ipso facto; therefore, a defense simply reciting that the insured property was so idle and inoperative for the prohibited time, but making no claim that the loss complained of was occasioned by reason thereof, states no defense to an action on such policy, so far as the provision contained in the slip is concerned.
It is, however, further urged that the insured property was a “manufacturing establishment,” and, hence, that there was a forfeiture specifically provided by the other quoted condition of the policy. The defense demurred to contained no allegation that the insured property was a manufacturing establishment; therefore, we can look only to its description as con tained in the slip. While it may not count for much, we find the slip headed “ Mining plant.” Looking to the particular description, nothing is there found to show that the insured property, or any part thereof, was a manufacturing establishment. It may, or may not, have been; Prima facie, one would hardly think so; he would naturally think of a crusher or mining plant sooner than of what is ordinarily denominated a “manufacturing establishment,” and a “mining plant” is not necessarily a “manufacturing establishment.” (Byers v. Franklin Coal Company, 106 Mass. 131; Hittinger v. Westford, 135 id. 258; Hartranft v. Weigmann, 121 U. S. 609, 7 Sup. Ct. 1240, 30 L. Ed. 1012; Lawrence v. Allen et al., 7 How. 785, 12 L. Ed. 914.)
Had the pleader intended to claim a forfeiture for the reason that the insured property was a manufacturing plant, and that it had ceased to operate for the forbidden number of days, he should have embodied in his pleading such an allegation. For these reasons we think that the defense attacked did not contain defensive matter, and, hence, that the demurrer was properly sustained.
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
Cunningham, J. :
The defendant in error sued the plaintiff in error upon ten itemized accounts, separately pleaded in his petition, as follows: (1) Goods sold and delivered by the plaintiff to the defendant corporation ; (2, 3,4, 5) goods sold to the defendant corporation by others, which accounts were alleged to have been assigned to the plaintiff; (6, 7, 8, 9, 10) goods sold by various parties to the Robins Mining Co., a copartnership, the payment for which had been assumed by the defendant, it being alleged that the defendant, a corporation created under and by virtue of the statutes of Missouri, had succeeded to all the property of the Robins Mining Co., a copartnership theretofore existing, and orally agreed to pay all the debts of such copartnership. A witness was called and permitted to state what the president, more than eighteen months after the alleged assumption, said with regard to the action of the corporation in the matter. Judgment was rendered for the plaintiff in the full amount claimed. A motion for a new trial being overruled, the defendant is now here to obtain a review and a reversal.
There was substantial error in the admission of the evidence of what the president of the corporation said with regard to the assumption of these debts ; it was mere hearsay. The officers of a corporation are its agents ; their acts and admissions, within the scope of their authority, bind the corporation like the acts and admissions of any other agents. The conditions which would warrant this court in holding that the admission of a president bound a corporation are not shown to exist here. His conversation purported to narrate transactions which had occurred some eighteen months prior to the time of such conversation and while he was engaged in a business not shown to have been that of the corporation which he represented. Nor was such admission shown to have been authorized by the corporation.
The correct rule is well stated in Clark and Marshall on Private Corporations, volume 3, section 728:
“The president of a corporation, as we have seen elsewhere, has no authority to act for or bind it by contracts or otherwise merely by virtue of his office, and therefore his admissions or declarations, although made on behalf of the corporation, are not binding upon it, or admissible in evidence against it, unless they are expressly authorized by the corporation, or are made in the course of transactions which are within the scope of the authority conferred upon him, and are a part of the -res gestae. If the president, however, is entrusted with the general management of the corporation, or with the management of a particular transaction, any admission or declaration by him within the scope of his authority is the admission or declaration of the corporation.”
Many authorities are cited in support of this proposition. The case of Central Electric Co. v. Sprague Electric Co., 120 Fed. 925, 57 C. C. A. 197, was one in its facts much like the case at bar. It was there said :
“Statements of officers of a corporation that the company had agreed ,to pay the obligations of another corporation whose assets it had acquired, were incompetent to show such agreement.”
Other authorities to the same effect are Hardwick Savings Bank and Trust Co. v. Drenan, 72 Vt. 438, 48 Atl. 645; Rumbaugh v. Southern Improvement Co., 112 N. C. 751, 17 S. E. 536, 34 Am. St. Rep. 528; Henry & Co. v. Northern Bank of Alabama, 63 Ala. 527; Johnston v. Elizabeth &c. Association, 104 Pa. St. 394; Hawey v. West-side Elevated R. Co., 20 N. Y. Supr. 392; 4 Thomp. Corp. § 4656.
The same principle has been declared by this court in Dodge v. Childs, 38 Kan. 526, 16 Pac. 815; A. T. & S. F. Rld. Co. v. Wilkinson, 55 id. 83, 39 Pac. 1043; Tennis v. Rapid Transit Rly. Co., 45 id. 503, 25 Pac. 876; Mo. Pac. Rly. Co. v. Johnson, 55 id. 344, 40 Pac. 641; Railroad Co. v. Osborne, 58 id. 768, 51 Pac. 286; Walker v. O’Connell, 59 id. 306, 52 Pac. 894.
There was no eyidence whatever that the president had had authority conferred upon him in regard’to this matter. The burden in this respect rested upon the plaintiff. The management of the affairs of this corporation was in the hands of the directors, and there is no presumption that the president had had delegated to him the power to bind his corporation for the payment of the debt of another. Nor was the admission testified to connected with the transaction as a part of the res gestae. The court was clearly in error in admitting this testimony.
It is suggested that such portion of the judgment as rests upon the first five counts should be affirmed. It is quite a serious question whether there was any' evidence in support of these counts, but, admitting that there was, it would not be proper to carve out of the total amount found due so much as we might suppose was found to exist by reason of the first five counts. The judgment is an entirety; it is all rendered bad because we cannot state how much, if any, of it is good.
Some other errors are assigned, but a careful examination shows them not to have been material.
For the error in the admission of testimony the judgment will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
We have here another of the seemingly endless problems arising out of the permutations of human affairs relative to the homestead question. The plaintiff in error Anna M. Hollinger states the facts as follows, with which statement no fault is found:
“In July, 1900, J. S. Hollinger died intestate. At the time oil his death he owned a farm of 160 acres in Dickinson county, Kansas, and occupied the same with his family as a homestead. He left surviying him as his heirs at law his widow, Anna M. Hollinger, and'seven children, of whom the plaintiff in error W. H. Hollinger is one. After the death of J. S. Plollinger, the widow, Anna M., continued to occupy the premises as a home with her two adult unmarried children, and she occupied the same continuously to the time of the trial of this case.
“Soon after the death of J. S. Hollinger, W..H. Hollinger, who was at the time in debt and insolvent, conveyed his interest in the homestead to his mother, Anna M. Hollinger. Such conveyance was in the nature of a gift, and without any other consideration than the natural affection existing between the mother and son.
“Some time thereafter the Boatmen’s Bank, the defendant in error, one of the creditors of W. H. Hollinger, obtained a judgment against him in the district court of Dickinson county, Kansas, upon which an execution was duly issued and levied upon the undivided one-fourteenth interest in the homestead as the property of said W. H. Hollinger; and thereafter the Boatman’s Bank commenced this action in aid of execution for the purpose of setting aside the deed of conveyance from W. H. Hollinger to his mother, and subjecting the undivided one-fourteenth interest in the homestead to the payment of this judgment.”
Upon these facts the court rendered the following judgment:
“It is therefore by the court now here considered, ordered and adjudged that the deed of conveyance from the defendant W. H. Hollinger to the defendant Anna M. Hollinger, for an undivided one-fourteenth interest in and to the following-described real estate, situated in Dickinson county, state of Kansas (land described), is void as against the judgment lien of said plaintiff, and that said plaintiff has a first lien upon said undivided one-fourteenth interest in said real estate in the sum of $27,391.38, with interest thereon at the rate of eight per cent, per annum from the 8th day of September, a.d. 1902.”
It is claimed that this judgment is erroneous be cause the real estate mentioned is the homestead of A. M. Hollinger, not that it was the homestead of the debtor, W. H. Hollinger. Upon the death of J. S. Hollinger, who at that time owned and occupied the land as his homestead, and who was the husband of Anna M. Hollinger and the father of W. H. Hollinger, the title thereto passed, under our statutes of descents and distributions, one-half to his -widow and one-half in equal shares to each of his seven children. (Dayton v. Donart, 22 Kan. 256.) Neither constitutional nor statutory homestead provisions had anything to do with this devolution of title. The title to land is not the concern of these provisions. The homestead right grows out of a condition and is not an estate. By this descent of title the heirs of J. S. Hollinger took something of substance and presumably of value; of course, it went to them conditioned with all the encumbrances created by the ancestor or imposed by the law, but whatever went to W. H. Hollinger was subject, upon the termination of those conditions, to the payment of his debts. He could not find protection for this property for himself under any of the homestead provisions, either of constitution or statute, because he was not occupying it as a home. He could not, by its conveyance without consideration, put his mother in any better position than he himself occupied, so far as his creditors were concerned.
It must be noted that the questioned decree goes only to the extent of declaring void the deed of, and decreeing a lien upon, W. H. Hollinger’s interest in the estate; it does not determine when or how that interest may be subjected to the satisfaction of the lien. Contention is made that if W. H. Hollinger’s interest may be sold to satisfy such á lien the homestead right of the widow in the land would be de stroyed. That question is not in this case, and we are not called upon to decide it; no sale has yet been ordered or attempted ; it may never be ; at least, so as to interfere with any homestead right of the widow, if any she have. It is sufficient now to say that the interest in the land in question which W. H. Hollinger took upon the death of his father and as his heir was a valuable one, and something which he could not give away while indebted, with the effect to hinder, delay .or defraud his creditors.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Ouriam:
This is a proceeding in error brought to review a judgment rendered in favor of the plaintiffs in an action on a fire-insurance policy. No questions are presented except such as relate to the admission of evidence at the trial. Complaint is made that, under the guise of showing that proofs of loss had been properly made, plaintiffs were permitted to introduce incompetent evidence of the value of the goods destroyed. As the court instructed the jury not to consider this evidence in estimating the value of the property, there is nothing substantial in the claim. Further complaint is made of the admission of the prices shown by a certain invoice, but these were also withdrawn from the jury by instructions. Other assignments relating to evidence admitted are not made with sufficient definiteness to require consideration. (Garden City v. Heller, 61 Kan. 767, 60 Pac. 1060.) Error is also alleged in the giving of instructions, but the record fails to show that any exceptions to them were taken.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J. :
This action was -upon appeal from the award of commissioners in an assessment of damages for the condemnation of a right of way for a railroad. The plaintiffs below filed their bill of particulars, alleging in general terms the facts of the taking of the land for the purpose of constructing a railroad across it, and their damages thereby in two items, which were deprivation of the lands taken and injury to the balance of the tract. The railroad company asked the court to require this bill of particulars to be made more definite and certain by showing in what way the remaining part of the tract was rendered less valuable by reason of the construction of. the railroad over and across it, and whether the damages so complained of were by reason of interfering with the use of the land for farming or mining or other purposes, or for the destruction of, or injury to, mining-shafts thereon. This request was denied, which affords ground for the first assignment of error.
The plaintiff was not required to file any bill of particulars. The matter of the filing of the same was wholly within the discretion of the court. (K. C. W. & N. W. Rld. Co. v. Kennedy, 49 Kan. 19, 30 Pac. 126.) This being true, the single fact that a bill of particulars was voluntarily filed by the plaintiffs would not require the court to compel the pleader to make such bill of particulars specific and certain in all of the minute details which might be desirable in ordinary pleadings. In this respect, as well as in the matter of filing, discretion was still reposed in the court. Of course, a bill of particulars so filed would not be permitted to remain in a misleading or questionable condition; if it were, the denial of such motion might be an abuse of discretion. Such is not the case here.
It is further complained that the theory of the trial court in presenting the issue, to wit, the amount of damage suffered by the owner of the land by reason of the taking, as presented to the jury by the instructions, was misconceived, or, at least, not fairly and fully presented. The bill of particulars alleged that the land sought to be appropriated was used for mining purposes, and the evidence clearly and without contradiction showed that practically its entire value consisted of the minerals lying from 50 to 100 feet or more beneath the surface. The evidence to a degree presented the issue whether these minerals might not to a large extent be removed from the right of way without interfering with the right of the company to use it as such right of way. The issue thus presented was to what extent the condemning of an easement for the purposes of a right of way for the railroad actually damaged the owner, in relation to the sole value of the land, to wit, its mining privileges. The only instructions given by the court to aid the jury in arriving at the proper measure of damage under these circumstances were as follows :
“In ascertaining and determining the damages which you will allow the plaintiffs for the land appropriated, the inquiry will be as to the strip taken, to which your attention has heretofore been directed, being 100 feet in width and of length as you may determine the fact to be from the evidence in the case; and the measure of damages is the fair market value of the property so taken and appropriated by the railroad company, and the sum allowed for damage, if any, resulting to the remainder of the tract of land in controversy by reason of the condemnation and appropriation of the land so taken by the railroad company.”
‘ ‘ In arriving at your verdict in this case you should determine, first, what was the fair, reasonable market value of the land condemned and appropriated by the defendant on the premises in controversy, so far as the same is involved in this suit, and what was the fair, reasonable market value of the strip of land containing 3.57 acres of land. You have heard the testimony of the several witnesses as to the value of such strip of ground, and it is for you to determine, in the-light of the preponderence of the evidence, what such value was at the time of the appropriation, namely, October 26, 1901.”
“In determining what amount of damages you will award and allow the plaintiffs for the land appropriated, and any damages awarded and allowed for injury to the remainder by reason of such appropriation,, you will consider what was the fair market value off the land taken, at the time of taking the same.”
The correctness of these instructions is challenged ; especially so, as applied to the facts of this case. It will be seen that the court proceeded in the matter of submitting the question of the plaintiff’s damages-upon the theory that the permanent taking of the-strip of land in question for the right of way for the' railroad practically amounted to a complete and permanent deprivation of all the rights of the plaintiff therein and of the beneficial use thereof. This theory is ordinarily the correct one, or so closely approaches-it that its adoption is not material error, because the beneficial use of lands is commonly found solely in the surface thereof.
Theoretically, of course, the condemnation creates but a servitude and leaves the fee in the owner ; but generally, where by virtue of the power of eminent domain the right is acquired to occupy and use the-surface of the land perpetually for a given purpose, the bare fee left in the owner is valueless for all practical purposes, and it is not error to assess the damages as though the fee were taken. (10 A. & E. Encycl. of L., 2d ed., 1150.) So in C. K. & W. Rld. Co. v. Parsons, 51 Kan. 408, 32 Pac. 1083, it was held that the damages occasioned by the taking may be determined by ascertaining the cash market value of the property actually taken. Yet it cannot be denied that gen- «rally the more accurate rule was laid down in W. & W. Rld. Co. v. Kuhn, 38 Kan. 104, 16 Pac. 75, as follows : “The measure of damage caused by the appropriation of a right of way by a railroad is the difference in value before the appropriation and immediately thereafter.” (See, also, A. T. & Santa Fe Rld. Co. v. Blackshire, 10 Kan. 477; K. C. Rly. Co. v. Allen, 24 Kan. 33.) This rule leaves open to the consideration of the jury in estimating damages not only all of the surrounding circumstances connected with the surface going to enhance damages, but all of the elements remaining with the fee going in mitigation.
Here, as we have seen, the value of the land occupied depended upon the minerals therein found below grade-line. By the condemnation the railroad company obtained no right to remove or appropriate any portion of them ; they all remained the property, of the owner of the fee. The company not only obtained the right to construct its road over the land, making such cuts and embankments as were necessary for that purpose, but it also obtained the right to surface support. To this end the owner of the fee may not remove any of the subjacent strata necessary thereto, but, subject to this right of surface support, he may remove all of such subjacent matter. (See Barr. & Ad. L. of Mines & M. 186; Mills, Emi. Dom., §52; 10 A. & E. Encycl. of L., 2d ed., 1199, and cases there cited; Evans v. Haefner, 29 Mo. 141; Robert et al. v. Sadler et al., 104 N. Y. 229, 58 Am. Rep. 498; Kelley, &c., v. Donahoe, &c., 59 Ky. 482; K. C. Rly. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190; Earlywine v. T. S. & W. Rly. Co., 43 id. 746, 23 Pac. 940.)
In this case, notwithstanding the condemnation of the right of way, the owners of the fee owned every bit of mineral thereunder, and had the right to mine and remove all that could be taken and yet leave adequate support. To the extent that this could be done it leaves in the fee-owner a valuable right which reduces by so much the damages which ordinarily follow the condemnation of lands where only surface conditions exist. Evidence as to the value of this right was introduced. It was an element in the determination of the plaintiffs’ damages by way of mitigation, which ought to have been submitted by proper instructions to the jury. The railroad company ought not to be required to pay for all the mineral, if a portion, or all of it, could be properly and profitably removed. That under the instructions the jury estimated plaintiffs’ damages as though the railroad company were becoming the absolute owner of the right of way and all beneath it seems highly probable from the fact that the damages for the taking of 8.57 acres of land, valuable only for mining purposes, were assessed at $1600.
There can be but little doubt that the court’s instruction to the jury to allow as damages the fair market value of the land, taken with the popular impression that by a condemnation the owner is deprived, not merely of the surface, but of everything else above and below, led the jury to give no thought whatever to the right remaining in the owner to remove the mineral below the grade-line. As applied to the facts of this case, we are of the opinion that the court committed prejudicial error in not stating to the jury the correct measure of damages.
The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring.- | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover for the loss of a barn and its contents alleged to have been destroyed by fire negligently set out by the defendant in the operation of its railroad. The property was insured in the Fidelity-Phoenix Fire Insurance Company, and it paid to W. E. Hammon, the owner, the amount of the insurance, $1,711.60, a sum less than the value of the property destroyed, and by reason of its interest the insurance company joined Hammon in bringing the action. Upon a trial the jury awarded Hammon the recovery of $1,784.40 and $1,711.60 to the Insurance Company, the amount it had paid on the insurance policy. The defendant appeals.
The controversy was before the court in an earlier appeal. (Hammon v. Railroad Co., 106 Kan. 787, 189 Pac. 909.) In that case, as well as Otey v. Railroad Co., 108 Kan. 755, 197 Pac. 203, the origin of the fire and the responsibility of the railroad company therefor were considered and determined. There is no longer any good ground for contention as to the responsibility of the defendant for starting the fire nor for the actual loss sustained, but defendant urges that the amounts awarded exceed the loss sustained and therefore that the verdict is not supported by the evidence. Aside from the barn itself, the contents, consisting of wheat, alfalfa, prairie hay, hogs, buggy, harness, saddle, hayrack, feed rack, fence, and a number of tools, were burned. The testimony as to the value of these as given by witnesses, tended to show that it amounted to more than the total sums awarded by the jury. To these awards must be added the allowance of $250 for the destruction of the barn. No special findings as to the value of the things burned, except as to the barn, were requested or made, and there is no way in this appeal to ascertain the values placed by the jury on the different things burned other than the building. The general verdict is therefore conclusive upon all matters of fact as to the property destroyed, other than the barn. The jury fixed the value of the barn at $750, and the usable value of the same for the unexpired portion of the Hammon lease at $250.
The testimony regarding the terms of the lease would have warranted an award to Hammon for the value of the barn, but the court instructed the jury that plaintiff could only recover for the value of the use of the same. While there is some complaint by the defendant as to the value of the use, a reading of the testimony shows that there is no good ground for the objection.
Complaint is made of an instruction stating in substance that plaintiff had an insurable interest in the barn, and that if defendant, caused the burning of it the plaintiff would be entitled to recovery for the use of the same for the unexpired term of his lease. It is said that as plaintiff asked a recovery for the destruction of the barn it was a departure to permit him to recover for the loss of its use. Proof that the loss was partial instead of entire can hardly be regarded as a departure.
Other complaints are made as to instructions defining a preponderance of evidence and the burden of proof, but nothing substantial is found in them. Defendant requested an instruction to the effect that certain instruments had been introduced purporting to show that sums of money had been paid to Hammon by the insurance company and that the values of property named in these papers could not be taken as any evidence of the value of the property in question in this action. It appears that the same question was raised when the instruments were introduced, and the court then explicitly told the jury that the statements contained in these as to value were not for their consideration; that the object of the papers was to show the amounts received by plaintiff from the insurance company, but that they constituted no evidence of the real value of the property. There was no necessity of repeating the instructions at the end of the trial and no prejudice could have resulted from the refusal to give the one requested.
Other objections are made to the- language of the instructions, but we do'not discover material error in any of them.
'Finding no reversible error in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The widow of J. N. Hopper brought this action under the workmen’s compensation act alleging that his death was due to injuries received while in the employ of the defendant. A demurrer to her evidence was sustained and she appeals. One ground upon which liability is denied is that no claim for compensation was made within six months after the death of the plaintiff’s husband.
Hopper was injured April 18, 1918. He executed a statutory release in consideration of the payment of $25 May 7, 1918. He died September 28, 1918, the certificate of death stating — “The cause of death was as follows: Pneumonia (Lobar). Contributory valvular heart disease.” The plaintiff made a demand for arbitration August 15, 1919, this being the first notice given to the defendant of a claim that her husband’s death was due to the injury referred to. The statute provides:
“Proceedings for the recovery of compensation* under this act shall not be maintainable unless written notice of the accident, stating the time, place and particulars thereof, and the name and address of the person injured, has been given within ten days after the accident, and unless a claim for compensation has been made within three months after the accident or in case of death, within six months from the date thereof. Such notice shall be delivered by registered mail, or by delivery to the employer. The want of, or any defect in such notice, or in its service, shall not be a bar unless the employer proves that he has, in fact, been thereby prejudiced, or if such want or defect was occasioned by mistake, physical or mental incapacity or other reasonable cause, and the failure to make a claim within the period above specified shall be a bar: Provided, however, That in case of incapacity of an injured employee the limitation herein shall not run during such incapacity.” (Gen. Stat. 1915, § 5916.)
Whatever may be the rule under other circumstances we think in the situation here presented the statute is to be interpreted as requiring the making of a claim by the plaintiff after her husband’s death and within six months of its occurrence. Such a requirement is in keeping with the spirit and policy of the law because the defendant, having settled with her husband during his lifetime, had no reason to anticipate the making of a further demand, and the assertion of one after the lapse of six months (in this instance over ten months) might well find it disabled from obtaining the information and preserving the evidence necesary for a defense. It does not appear that any claim for compensation was made upon the defendant by the injured employee, but the settlement made with him would render that fact immaterial as between them. But this settlement having been effected the defendant was justified in assuming in the absence of any notice to the contrary that the whole affair was ended and in treating it as a closed incident. While the plaintiff pleaded that the release was entered into under a mutual mistake of fact as to the nature and extent of the employee’s injuries, and that the consideration therefor was so grossly inadequate as to amount to a fraud, these contentions were abandoned on the trial. Even if the defendant had known of the death there was no reason to connect it with the accident, especially in view of the cause assigned in the certificate. Whatever considerations make it desirable that a claim for compensation shall be made upon the employer within six months after the death of the employee in any case apply fully here.
Under our compensation act the statute of limitations begins to run against the claim of the dependents as well as that of the injured employee from the time of the accident, but we do not regard this fact as throwing any light on the interpretation of the language under consideration. The fixing of the period of limitation rests of course wholly with the legislature and the policy of requiring a compensation action by dependents, to be brought within a fixed time from the accident, does not necessarily rest upon the theory of the identity of their demand with that of the employee.
In British Columbia the making of a claim under the compensation act after the death of the injured employee has been held unnecessary where one had previously been made in behalf of the injured workman. (Moffatt v. Crow’s Nest Coal Co., 12 D. L. R. 642, 643.) The statute there involved differed from our own in not containing the specific provision that “the failure to make a claim within the period above specified shall be a bar.” The plaintiff suggests that such a provision is to be implied from the fact that the failure to give notice of the accident (as distinguished from making a claim for compensation) was made a bar only in case prejudice to the employer resulted therefrom. Such.a distinction does not appear to have been the ground of the decision, which is based upon a purpose to carry out the intention of the act by a liberal construction thereof. The claim is treated much as a notice and is so spoken of in the opinions, while the headnotes refer only to a “notice of injury.” There the claim for compensation was made one week after the accident, and death ensued two weeks later, before any further proceedings had been taken, and while the claim was still pending. Quite obviously the claim then made may have been sufficient to protect the employer from a stale demand— to warn him that a claim was about to be made and thus put him on his guard. But such is far from the case here. The steps that had been taken — the settlement and release — so far from warning the employer of the prospect of a further demand, tended to lull him into security in the belief that the whole affair had been finally disposed of.
In Michigan a new claim in behalf of the dependents is required where the employee’s injuries result in his death pending the allowance of his own demand. (Curtis v. Slater Construction Co., 202 Mich. 673.) The statute there involved has some features which were given weight in reaching this conclusion and which are not found in our law; for instance, the dependents are expressly declared not to be parties in interest to a proceeding by the employee for the enforcement of his demand, and the claim of the dependents is required to be signed by them or by some one in their behalf. We regard the decision, however, in its general aspect as tending to support the view we have taken.
The defendant also urges that there was not sufficient evidence that the employee’s death was due to the accident, and that the release barred the plaintiff’s claim as well as that of her husband. In view of the conclusion already announced it will not be necessary to consider these matters.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was upon a farm automobile policy insuring a certain Ford roadster, No. 2,973,641, against loss by theft for one year. The answer alleged that when the policy was issued the' car was not the property of the plaintiff but belonged to some other person from whom it had been stolen. As a further defense it was alleged that the plaintiff falsely stated to the agent of the company that he had paid $500 for the car, which representation the plaintiff knew to be false; that defendant relied upon the statement, and that by reason thereof %he policy had become void. ' The answer tendered back to plaintiff the premium paid. The reply was a general denial. The trial resulted in a verdict and judgment for plaintiff. Defendant appeals.
The plaintiff, who was a minor, testified that his father purchased the automobile from plaintiff’s uncle and paid $475 for it; that his father gave the car to him; that he was present when the policy was issued; that Mr. Cunningham, the agent of the company, put the value on the car; that he himself did not know the number of the car although he had looked at it; that his father gave the number to Cunningham. The plaintiff also called Mr. Cunningham who testified that he wrote the application and sent it to the company’s agent at Wellington, Kan.; that he insured two cars at the same time, one, the roadster in question, and a touring car which belonged to plaintiff’s father, who gave him the number of the roadster from the Kansas license receipt; “read it to me from the paper.” The wit ness did not go to the car to examine the number; the car looked to him the same as a new one, and he knew the value of the car at the time; he wrote the application and the plaintiff merely signed it. The plaintiff offered téstimony showing that the car was in the garage on the farm the night before it was missing. The doors were locked; the next morning the lock showed that it had been pried off; the car was gone.
On the cross-examination of Mr. Cunningham the defendant sought to show that he was not the agent of the company but merely a solicitor. The court very properly held that as the petition alleged that he was defendant’s agent, the failure of the answer to deny that fact under oath amounted to an admission of agency. The ruling was correct. (Civ. Code, § 110; Hornick v. U. P. Railroad Co., 85 Kan. 568, 572, 118 Pac. 60.)
The defendant read the deposition of one Charles L. Wachter, taken in New York city, who testified that he was the owner of and in possession of Ford car No. 2,973,641; that he purchased it from the Ford factory long prior to the issuance of this policy. The depositions of two other witnesses were read who testified that they had examined the car and that the number given by Mr. Wachter was correct. In rebuttal the plaintiff offered in evidence the Kansas automobile license which gave the number the same as that stated in the policy.
We are unable to find anything substantial in the defendant’s contentions. There was evidence to’sustain the verdict, and of course an instruction directing a verdict for the defendant would have been improper. The court was right in refusing to instruct that even if the jury believed from the evidence that plaintiff owned the Ford motor car at the time the policy was issued, still they must find for the defendant unless they believed from the evidence that the car bore the number stated in the policy. The number of the car as recited in the policy was merely a matter of description. It was the particular car which the defendant insured and not the number. It is possible that there was a mistake in issuing the state license and the wrong number might have been given, which would account for the same error in the policy. On the other hand there was evidence justifying the jury in finding that the number stated in the policy was correct.
Another requested instruction charged that if the jury beliéved from the evidence that in 1919 Charles L. Wachter purchased a Ford car No. 2,973,641 and that he had since been in the continuous possession thereof, then it was their duty to find for the defendant. To have given such an instruction would have been error. The court correctly charged that if plaintiff was not the owner of the automobile which defendant company attempted to insure then the verdict should be for the defendant.
The case presents nothing but issues of fact, with no conflict in the evidence upon any matter of real consequence. The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued for damages for failure to complete an- oil and gas well. The amended petition alleged that the plain tiff corporation was organized for the purpose of securing oil' and gas leases near Miltonvale, Kan., and sinking prospect wells so as to ascertain whether or not the territory contained oil or gas in paying quantities, and that a large number of leases covering several thousand acres of land had been procured and the company had expended a great amount of money therefor, such leases providing that unless such wells were sunk before May, 1918, they should be null; that on July 7, 1917, the plaintiff entered into a written contract with the defendant to sink a well on the property covered by one of the leases, to a depth of 2,500 feet, unless Mississippi limestone or other substances preventing further drilling were encountered and unless oil or gas in paying quantities was discovered before the depth of 2,500 feet was reached, the plaintiff to make certain cash payments as the well progressed, amounting in all to $5,000, and assign certain leases. It was alleged that the plaintiff assigned the required leases, which were then of the value of more than $10,000, and paid the defendant on the work more than $4,000; that the defendant assigned the leases to a third party and realized therefrom the sum of more than $10,000; that in May, 1919, without any excuse and without having sunk the well to a depth of more than 1,500 feet and without having encountered any hard substance, and without notice to the plaintiff, the defendant abandoned the well and undertook to wreck it, all to the plaintiff’s damage of $14,000.
The defendant denied these allegations generally and alleged that the contract contained a clause providing that the defendant should not be held liable for any delay by reason of matters beyond his control, and averred that shortly after the beginning of the work conditions brought on by the war made it impossible to obtain the necessary casing, whereby the work was abandoned temporarily, about April, 1918; that the plaintiff undertook to procure an injunction in the district court of Clay county against the defendant from moving the casing, and failed. The defendant asked for $10,000 against the plaintiff for its wrongful conduct.
To this answer a reply was' filed alleging a fraudulent collusion with the U. S. Supply Company for the purpose of making a pretended sale of the casing and machinery and getting the material out of the state, and wrecking the well, and that the Clay county district court held that the pretended sale was fraudulent and void and made for the purpose of defrauding the plaintiff.
The plaintiff’s brief states that the defendant was present at the trial, but offered no evidence.
It seems that Howerton made a contract with a man named Teatsworth to do the work.
G. H. Palmer testified among other things that during the progress of the drilling a total of $4,000 was paid on the contract; that about the time the contract was made with Howerton the leases involved had a market value, and a list of the tracts and values was given, the latter amounting to more than $20,000. The witness Graham had testified that if the plaintiff had taken over the work it would have cost $6,000 less the $1,000 still unpaid on its contract, or $5,000 to complete it.
Upon the conclusion- of the testimony, the plaintiff asked leave to amend the petition so as to allege that it would require the expenditure of $5,000 on its part even if it had the right to complete the well, over and above the amount still due Howerton on the contract, which was granted. A continuance asked on that ground was denied and a demurrer was then ■ interposed to the plaintiff’s evidence. When called upon fpr the reason therefor counsel contended that the measure of damages was what would be required to complete the well from the point where the work stopped, less the amount the plaintiff would have owed the defendant for the additional depth had the well been completed. The demurrer was overruled.
The jury were charged that the plaintiff had no right or authority to enter upon the premises and endeavor to sink the remaining thousand feet, unless given permission to do so by the defendant or its assignee, and it was not bound to make any effort so to do.
The measure of damages was said to be the expenditure of the plaintiff under the contract over and above the amount due the defendant had he completed it. The jury found a verdict for the whole amount sued for, $14,000. The defendant appeals and makes thirty-eight specifications of error. However, in his brief, he gives as the principal errors to which he desires to call special attention: Measure of damages, overruling the-demurrer, error in giving and refusing instructions, failure of proof and refusal to grant continuance.
The latter is without merit. The proof was abundant. The overruling of the demurrer was proper.
This leaves two questions: The measure of damages and. the giving and refusal of instructions.
In discussing the measure of damages at the conclusion of the plaintiff’s testimony, the court said that—
“The Court on an objection to the introduction of evidence on the part of the defendant, listened to counsel on both sides at some length and adopted the rule insisted by counsel for the defendant as the measure of damages, plainly stating that before counsel in open court and in the absence of the jury, and the trial was proceeded with on what the court believes to be a thorough understanding of the issues by counsel on both sides.”
• In his brief the defendant invokes the rule laid down in Artwein v. Link, 108 Kan. 393, 195 Pac. 877, which he says the trial court should have followed in charging the jury as to the measure of damages. That rule is that the expected profits from the sale of oil and gas leases on account of oil and gas wells being drilled cannot be recovered as damages from those failing to drill the well. In the opinion it was said that there was nothing in the contract to show that the parties contemplated that loss of profits might be recovered on its breach.. It is quite certain that the rule given by the court to the jury was fully- as favorable to the defendant as the one laid down in the Artwein case, and whether or not the defendant requested the court to give the very measure of damages which was given, it does not appear that any prejudice to the defendant arose from the instructions on this branch of the case.
The instructions requested and refused were, first: that if the work stopped at the depth of 1,500 feet and the well was left in good condition and the defendant did not interfere or prevent the plaintiff from completing it, the measure of damages would be the amount required by the plaintiff for completing the well to the depth provided for in' the contract. This request ignored the consideration paid for the sinking of the well which was without dispute proved to be more than $10,000.
The second was that if the defendant ceased drilling because or reasons beyond his control or was prevented from completing the well by acts of the plaintiff, the latter could not recover. This was given in instruction No. 7, and the refusal of the other was not error.
The remainder of the thirty-eight assignments of error, not being deemed by the defendant to be of sufficient merit to be presented in his brief, need not be further noticed.
Finding no material error, the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action upon a judgment rendered by a court in Arkansas. As a defense to the action the defendant, Paynter, alleged that the judgment had been procured through the fraud and perjury of the plaintiffs, and he set forth in his cross petition certain testimony and acts alleged to have been false and fraudulent and but for which the judgment would not have been rendered. Upon plaintiff’s demurrer to the pleading setting up this defense the court held that the facts stated were insufficient to constitute a defense to the judgment. From this ruling defendant appeals.
It appears that the plaintiffs exchanged a tract of land in Kansas for another tract owned by the defendant in Arkansas. In the exchange the plaintiffs to whom the Arkansas land was conveyed executed a mortgage thereon to the defendant for $4,000. Later the defendant brought an action in the chancery court of Scott county, Arkansas, to foreclose that mortgage and in that proceeding the plaintiffs filed an answer and cross petition alleging that in the exchange of -lands the defendant had made false representations as to his title to the land and also as to the trees growing upon it. They further alleged that he represented that he had contracted for a sale of growing trees for a large sum which he would turn over to the plaintiffs but that his representations as to the title and as to the trees and timber were false. They charged that these representations were knowingly made by defendant to deceive the plaintiffs and induce them to make the exchange of lands, that they relied on the representations made and were thereby induced to exchange their home and lands in Kansas for the Arkansas land. On the evidence offered in that case the Arkansas court found that the defendant had made false representations as to the title of the land, also as to the location; character and quality of the land, and of the trees growing thereon, that the defendant knew the representations were false, and were made with the intent to defraud the plaintiffs, and further that plaintiffs relied on these representations in making the exchange of lands. As the defendant had previously sold the Kansas land, that court entered a decree canceling the mortgage and giving the plaintiffs a judgment against the defendant in the sum of $6,156.36, for the damages which plaintiffs sustained. An appeal was taken from that judgment to the supreme court of Arkansas and there it was affirmed. That is the judgment upon which the plaintiffs brought_this action.
The question presented here is whether the allegations in defendant’s answer and cross petition stated a defense to the judgment. He insists that the plaintiffs recovered the judgment by false testimony and fraud, in that they gave testimony to the effect that they relied solely on the representations of defendant as to the condition of the title and as to the quality and location of the land and the extent that it was forested, whereas, as he alleged, they had made a personal inspection of the land, knew its condition and made the exchange based on that inspection. It is alleged and claimed that plaintiffs concealed the fact of the inspection from the Arkansas court and testified that they had not seen the land, but had relied upon the defendant’s representations respecting it. This testimony he alleged was false and upon it the judgment was founded. Defendant further alleged that the plaintiffs in their answer and cross petition filed in the Arkansas court,' did not state fully the representations upon which the judgment ^as rendered but were allowed to prove others and when the proof" was offered they asked and obtained leave of the court to amend their pleading to conform to the proof. It is averred that the defendant was thereby misled and at that time was unprepared to refute or discredit the evidence so produced, and that this course was taken by plaintiffs to defraud the defendant.
The court ruled correctly in sustaining the demurrer to defendant’s answer. There was no lack of jurisdiction in the Arkansas court of the person of the defendant or of the subject matter in the action in which the judgment was rendered. The court was one of general jurisdiction with full authority to adjudicate the matters in controversy and defendant does not even contend that jurisdiction was fraudulently acquired. Where there is jurisdiction the judgment of a sister state must be given full faith and credit. The gravamen of the complaint of fraud is that plaintiffs maintained their claim by false testimony. The alleged false testimony related to the issue whether plaintiffs relied on the representations made by the defendant or upon information gained by their inspection of the property exchanged. That was an issue in the case before the Arkansas court and it devolved on that court to determine the truth or falsity of the testimony. As to that issue, the judgment rendered by that court must be treated as conclusive when attacked in this state. It has been held that a party to an action in which a judgment is rendered cannot in another action impeach or set aside the judgment on the ground that it was obtained by perjured testimony. It was said: ■ •
“All courts are likely to be deceived by perjured testimony, and to permit a defeated party to go to another court — foreign, or domestic — and procure a retrial of the same issues on the ground that the successful party had fraudulently procured the former judgment upon false testimony would make litigation endless and judgments as unsubstantial as the stuff that dreams are made of.” (Bleakley v. Barclay, 75 Kan. 462, 470, 89 Pac. 906).
In another action brought to' vacate a judgment upon the ground that it was obtained by fraud, it was held that fraud which will authorize a court to annul a judgment must be extrinsic or collateral to the matter involved in the former action, and that a party who pleads that it was obtained on false or perjured testimony and shows that the issue to which the testimony relates was an issue in the former case and was tried out upon a conflict of testimony, the truth or falsity of which was determined in the former action, is not entitled to relief, (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079.) In McCormick v. McCormick, 82 Kan. 31, 39, it was said:
“A judgment procured by false or perjured testimony is not open even to a direct attack on that ground, when the testimony relates to an issue raised by the pleadings and tried out at the hearing.”
(See, also, Larimer v. Knoyle, 43 Kan. 338, 23 Pac. 487; In re Wallace, 75 Kan. 432, 89 Pac. 687; Miller v. Miller, 89 Kan. 151, 130 Pac. 681; Dickson v. Patterson, 106 Kan. 794, 189 Pac. 912; United States v. Throckmorton, 98 U. S. 61; Pico v. Cohn, 91 Cal. 129; Steen v. March, 132 Cal. 616.)
It is contended that the plaintiffs’ pleading was unduly enlarged during the trial in order to conform to proof that had been produced by plaintiffs. The issue of fraud was distinctly pleaded by the plaintiffs. As evidence was offered and received of additional acts of fraud by the defendant, the court permitted an amendment covering that evidence. Defendant says that he was taken by surprise and was unrea,dy to meet it and show that it was untrue, and that the action operated as a fraud upon him. If an error was committed in that respect the defendant had an opportunity to have it corrected in the court rendering the judgment or upon appeal to the supreme, court of that state. It appears that the rulings in the case were reviewed on an appeal to the supreme court but it was there held that no error had been committed. A judgment of a sister state where there is no want of jurisdiction cannot be impeached for irregularities in the proceedings, or erroneous rulings. It is to be regarded as binding until set aside by the court rendering it or by a reviewing court upon appeal. (Dickson v. Patterson, supra.)
Finding no error in the ruling complained of the judgment of the district court is affirmed. | [
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The opinion of the' court was delivered by
Porter, J.:
C. P. Baxter loaned $10,000 to the Cherryvale Oil Company and took its note and a mortgage on its leasehold interests in certain lands. In an action to foreclose the mortgage cross-petitions were filed by a number of defendants setting up mechanics’ liens. Judgment was rendered foreclosing the mortgage and the liens, and giving priority over the mortgage to the liens.
The plaintiff appeals from a judgment giving priority to two of the liens: that of E. M. Dack & Son for $1,127.11 and the Beeler & Campbell Supply Company for $1,937.01.
In their cross-petition Dack & Son alleged that on the 11th day of February, 1918, they entered into a written contract with the oil company to drill two wells, described as wells 5 and 6; “that after the work as specified in said agreement had been done and performed by these defendants, it was verbally agreed that the terms set forth and specified in said written agreement should apply to all work and labor done and performed by said copartnership.”
The mortgage was executed on March 25. At that time the visible development showed two wells; one that had been shot and cleaned out, and the other drilled but not shot. Several other wells were commenced and some completed under the verbal, arrangement made after Baxter’s mortgage had been executed and after he had paid out of the proceeds thereof Dack & Son’s claim for drilling the two wells called for in the written contract. Mr. Dack testified that Reese, who. represented the oil company, came to see him and wanted to know if it would be all right to go ahead “and drill on the contract just the same as they had been.” Baxter had already paid the boys for one well. “I told him it. would be all right if the boys seen fit to do that.”
It appears from the record that Dack & Son’s claim to the extent of $275 was a valid lien for the work performed in the completion of wells 5 and 6. In attempting to establish a lien for the other wells they rely upon the established rule that a mechanic’s lien has priority over a mortgage if the furnishing of the work or material was commenced before the mortgage was executed, and insist that the situation is the same as though a contract- had been made for the erection of buildings or dwelling houses and the foundations had been commenced when the mortgage was executed. We think that doctrine cannot be applied to the facts here, except as to the two wells contracted for prior to the .execution of the mortgage. If there had been two buildings contracted for and the work of building commenced prior to the execution of the mortgage, and the owner and the contractor had made an oral arrangement after the execution of the mortgage that a number of other buildings should be erected on the same tract of land upon the terms embraced in the original contract, it would hardly be contended that the subsequent arrangement, by some fiction of law, could be tacked to the first contract so as to give priority over the mortgage to liens for labor and material for the additional buildings. Under the statute the contract for the two wells and the commencement of the work thereon prior to the mortgage entitled the material men to a prior lien as against the mortgagee. But the force of the contract ended with the construction of the wells provided for. It follows that Dack & Son were, entitled to a lien to the extent only of $275 for the material shown to have been furnished in the completion of wells 5 and 6.
The Beeler & Campbell Supply Company relies upon an arrangement with Reese, manager for the oil company. He went to the supply company and asked for a line of credit, stating he was going to drill a number of wells. They agreed to give him credit. He did not arrange to buy any specified quantity of material from the company; just sent in and got what he wanted; he was at liberty to go to any other supply company and buy such materials as he saw fit, and was under no obligation to purchase anything further from the Beeler & Campbell Supply Company. For instance, the first purchase, which was made on March 2, amounted to $153.15. On March 5 two small items of material were purchased and the transaction as to that purchase closed. Again, on March 13, there was another purchase. The total amount of all the purchases made prior to plaintiff’s mortgage was $1,398.03. Some payments had been made on the purchases. It appears that each transaction with the supply company was a separate and distinct one, each involving a separate contract; with each purchase the transaction ended. It has been held that contracts for purchases at various times cannot be tacked together for the purpose of extending the time in which to file a lien statement. In 27 Cyc. 144, it is said:
“Where labor or materials are furnished under separate contracts, even though such contracts are between the same persons and relate to the same building or improvement, the contracts cannot be tacked together so as to enlarge the time for filing a lien for what was done or furnished under either, but a lien must be filed for what was done or furnished under each contract within the statutory period after its completion.”
In Chadwick v. Hunter, 1 Manitoba, 39, it was held that where materials are furnished for a building from time to time, as ordered, without any contract to supply them, each sale is a separate transaction and the lien statement must be filed within the statutory period thereafter. The same rule is, by analogy, applicable to the point under discussion here, although the law permits filing of a single claim or statement embracing material furnished under separate contracts if filed within the statutory period after the completion of each contract. (27 Cyc. 144, note.) The lien in this case had its inception in the contract for the purchase of the material. Each being a separate contract, the subsequent furnishing of material under a different contract, could not be tacked onto the prior contract.
The court erred in giving priority to the full claim of Dack & Son, and that judgment is reversed with instructions to allow their claim to the extent of $275.
The judgment in favor of the Beeler & Campbell Supply Company is reversed. ’ Some confusion appears in the abstract with respect to the exact amount to which the Beeler & Campbell Supply Company is entitled. If the parties cannot agree as to the balance due the supply company at the time of the execution of the mortgage, the court is directed to find the amount and allow priority to that extent. | [
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The opinion of the court was delivered by
Btjrch, J.:
John W. Kemp was convicted of perjury, and appeals. Kemp gave a note, to which a coupon was attached, to the Bankers Mortgage Company for borrowed money and secured the note by real-estate mortgage. Kemp defaulted, and an action was commenced to recover on the note and to foreclose the mortgage. Kemp filed an answer. The answer identified the note and contained affirmative statements of fact that Kemp did not sign the note, did not deliver the note, and the signature on the note was not Kemp’s signature. Following these statements was a denial, which reads:
“And said defendant specifically denies that he executed and delivered said note to the plaintiff as alleged in count one of plaintiff’s petition.”
The same affirmative statements of fact and the same denials were made respecting the coupon and respecting the mortgage. The answer was verified as follows:
“Affidavit.
“State of Kansas, Counity of Wyandotte, ss:
“John W. Kemp, of lawful age, being first duly sworn, upon his oath states that he is the defendant above-named and that he has read the above and foregoing separate amended answer of John W. Kemp and that the statements, facts and denials set forth therein are true according to his best knowledge and belief. (Signed) John W. Kemp.
“Subscribed and sworn to before me this 20th day of June, 1929.
“(Seal.) (Signed) C. E. Williamson, Notary Public.
“My commission expires January 19, 1931.”
The notary was a witness at the trial. He testified that Kemp brought the answer to him and signed the answer and the affidavit in his presence. The notary then testified as follows:
“Q. Now after having seen him sign on page 3, what, if anything, did you do as a notary public, Mr. Williamson? A. I acknowledged his signature.
“Q. What, if anything, did you request Mr. Kemp to do with reference to acknowledging that instrument? A. I asked him if that was his free act and deed.
“Q. You did? A. Yes.
“Q. Did you ask him anything more? A. Not that I remember of. No, I don’t remember of asking him anything more.
“Q. Then what did you do with reference to the instrument, Mr. Williamson? A. I signed it and put my seal on it and expiration date as notary.”
Defendant contends there was no proof an oath was administered.
The perjury statute reads:
“Every person who shall willfully and corruptly swear, testify or affirm falsely to any material matter, upon any oath or affirmation or declaration legally administered in any cause, matter or proceeding before any court, tribunal or public body or officer, shall be deemed guilty of perjury.” (R. S. 21-701.) - . ■
The statute relating to oaths reads:
"All oaths shall be administered by laying the right hand upon the holy Bible, or by the uplifted right hand.” (R. S. 54-102.)
“All oaths shall commence and conclude as follows: ‘You do solemnly swear,’ etc.; ‘So help you God.’ . . .” (R. S. 54-104.)
The statute relating to verification of pleadings reads:
“The affidavit verifying pleadings may be made before any notary public or other officer authorized generally to administer oaths, and must be signed by the party making the same; and the officer before whom the same was taken shall certify that it was sworn to or affirmed before him and signed in his presence. The certificate of such officer, signed officially by him, shall be evidence that the affidavit was duly made; that the name of the officer was written by himself and that he was such officer.” (R. S. 60-734.)
There are numerous decisions by able courts which support defendant’s contention there was no proof an oath was administered. There are other decisions with which this court is more in accord.
It was a question of fact whether Kemp swore on oath legally administered. The notary who officiated in the proceeding' identified his certificate and told what occurred. His testimony respecting what occurred showed none of the statutory requirements relating to administration of an oath were observed. But there was the notary’s certificate. The statute says the certificate was evidence the affidavit was duly made. In his brief Kemp discusses presumptions, which Dean Wigmore called artificial rules which stand in place of proof until the contrary is shown, and which the supreme court of Missouri called bats of the law flitting in the twilight but disappearing in the sunshine of actual evidence. We have no presumption here. We have the notary’s written statement under signature and seal, made at the time. Under the sunshine of the statute it has the radiance of actual fact. We have the notary’s oral statement. It flits in the twilight of memory of things two and a half years old. The jury could believe either.
Besides what has been said, Kemp went to the notary with a blank form to be made into an affidavit with a certificate that the formalities of a solemn ceremony had been observed. The purpose was to verify an answer to be filed in court, verification being necessary properly to raise the issue which the answer purported to raise. The notary had before him the certificate to be executed, which if executed would declare Kemp was sworn. The notary executed the certificate. Manifestly, both parties intended that out of Kemp’s visit to the notary there should come what would have the effect of administration of an oath; and the court holds that in the absence of clear proof the ceremony, or lack of ceremony, was designed by the participants to leave Kemp unsworn, the legal effect of what occurred was the same as if Kemp was sworn according to formalities prescribed for administration of an oa'th. (State v. Madigan, 57 Minn. 425; Atwood v. State, 146 Miss. 662; Komp v. State, 129 Wis. 20.)
Kemp contends that if there was an oath it was not one authorized by statute in that it concluded with “according to his best knowledge and belief.” The statute relating to verification of pleadings reads:
“The affidavit shall be sufficient if it state that the affiant believes the facts stated in the pleading to be true.” (R. S. 60-732.)
Kemp could have no better belief than his best belief, and the affidavit was equivalent in meaning to a statement he believed the facts stated in the pleading to be true.
The information did not specifically allege in set phrase that Kemp swore falsely. The criminal code requires that the information shall be direct and certain with respect to the offense charged. (R. S. 62-1005.)
The essence of the crime of perjury is that the person charged swore falsely, and it is passing strange that a prosecuting officer, with the statute before him, should omit direct allegation of falsity from the information. However, the information charged that Kemp did unlawfully, willfully, feloniously and corruptly swear on oath, legally administered, the statements, facts and denials contained in the answer were true well knowing they were false and untrue and that Kemp made the allegations under oath with intent to deceive and mislead. In this instance, the criminal code itself has forbidden resort to the technicalities of common law pleading in perjury cases.
“The indictment or information is sufficient if it appear therefrom—
“. . . Fourth. That the offense charged is clearly set forth, in plain and concise language, without repetition. And,
“Fifth. That the offense charged is stated with such a degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case.” (R. S. 62-1010.)
“No indictment or information may be quashed or set aside for any of the following defects:
“. . . Seventh. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” (R. S. 62-1011.)
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (R. S. 62-1718.)
It is not open to dispute that Kemp knew he was charged with perjury in a matter clearly pleaded; that the trial court could pronounce judgment according to the right of the case; and that the imperfection in the information did not tend to prejudice Kemp’s substantial rights. The same provisions of the criminal code nullify the common-law rule that besides showing falsity of what was sworn to, the pleading should go on and tell antithetically what the truth was. The whole purpose of the section of the bill of rights which requires that the defendant shall be allowed to demand the nature and cause of the accusation against him (§10) is subserved when the information discloses that he swore falsely.
Defendant contends the oath was not material because the answer raised no issue. The answer contained a general denial. The answer also contained the specific denials referred to above. The brief says each specific denial is a negative pregnant. Therefore, only the general denial was left to raise an issue. As indicated above, the answer contained affirmative statements of fact that defendant did not sign, that the signatures were not his, and that he did not deliver. The verification was that the “statements, facts” and denials set forth in the answer were true. Why the affirmative statements in the answer should be ignored is not apparent.
There is nothing else of importance in the case, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The question presented for decision in this action is whether the mortgagor of land decreed to be foreclosed and sold was entitled to eighteen months or only six months as a period of redemption.
The land in question was formerly owned by J. L. Pearce, and was mortgaged by him to the Union Central Life Insurance Company in March, 1919, to secure an indebtedness of $9,000 which matured on April 1, 1929. Afterwards the Montgomery County National Bank acquired the legal title to the land, taking title sub ject to the Pearce mortgage, but not assuming payment of the mortgage debt. In March, 1929, some negotiations were had with the insurance company as to a renewal or an extension of the mortgage.On April 2, 1929, the land was conveyed by the bank to W. L. Dillman, its president. He applied to an agent of the insurance company for a renewal of the Pearce loan, stating that he was paying for the land $11,000 cash and the $9,000 loan applied for. The deed from the bank to Dillman was executed on April 15, 1929, and the consideration named in the deed was $18,000. In aiding Dillman to obtain the loan from the insurance company, the cashier of the bank executed a certificate to the effect that the bank had sold the land to Dillman, and had placed him in possession of it, and the bank had no objections to his mortgaging the land to the insurance company. Dillman and his wife executed a mortgage on the land to the insurance company for $9,000, on May 21, 1929, and as there was a default in the payment of the mortgage this action was brought to recover the debt and to foreclose the mortgage. The bank, it appears, passed into the hands of a receiver, and he is named as defendant in the case. It appears that on June 10, 1931, Dillman and his wife executed their deed to the receiver for an express consideration of one dollar and conveyed the land to the receiver, the same having been made subject to the mortgage to the insurance company. It is stated that taxes and interest were paid by the bank after the conveyance of the land to Dillman and until the bank was closed on May é, 1931. Defendant further claimed that Dillman never had any individual interest in the land and did not hold it adversely to the bank.
This action was brought in April, 1932, and the judgment was rendered in favor of the plaintiff for $10,129.33, against the parties executing the note and mortgage, also foreclosing the mortgage and directing a sale of the mortgaged property, which was made. When the matter of confirming that sale came up, an issue was raised as to the period of redemption, whether it should be eighteen months or reduced to six months, it being contended by plaintiff that the mortgage foreclosed was a purchase-money instrument, and as less than one-third of the purchase price was paid in cash or exchange of property, the period of redemption to which the defendant was entitled was only six months.
Defendant contends that the transfer of the land to Dillman was not in fact a sale but only a mere gesture, and that the insurance company necessarily knew of the nature of the transaction, as its agent negotiated and arranged for the new mortgage that had been foreclosed, and that as the new mortgage was made by its agent, it necessarily knew of the facts concerning the transfer, and hence plaintiff’s instrument was not for purchase money, but was simply an extension of a loan made by Pearce, the previous owner in 1919.
After the evidence was presented, the court first fixed the redemption period at eighteen months, but later reduced it to six months; as shown by the following finding and orders:
“The court specifically finds from the admissions of counsel in open court and evidence submitted that the period of redemption for said defendant owner should be reduced to six months from the date of sale of the lands in controversy.
“And the court having examined the proceedings had with reference to said sale, finds that said sale in all respects has been made in conformity to law; that said sale ought to be confirmed, and that the sheriff of Labette county; Kansas, ought to make to the purchaser a certificate of sale and purchase.”
And judgment was accordingly given.
There is testimony that the papers made out in relation to the loan, including the deed and mortgage, were in the usual form and regular manner and that when the. mortgage was made the 320-acre farm was worth double the mortgage debt, but that under present conditions it would not sell for the amount of the debt.
The claim of plaintiff that its mortgage was for the purchase money of the land and that, therefore, under R. S. 60-3466 the redemption period is limited to six months, cannot be sustained. The application for the loan was merely an extension or renewal of the Pearce loan made by Dillman, the president of the bank, and was so treated and received by the insurance company. The scheme of having the mortgage made by an officer of the bank rather than by the bank itself was suggested by the insurance company, probably for its own convenience or in conformity to some policy of its own respecting the sale and transfer of the security. The plaintiff not only proposed the scheme, but Dillman, the president of the bank and a witness for plaintiff, testified that the loan was made by plaintiff—
“Wholly upon the security offered at the time, knowing full well that said land was the property of said bank and that there was no sale or even a contemplated sale of the land to affiant, but that the same was made on their own suggestions that they, could not make the loan to their eastern correspondents if it were not made in the name of an individual.”
It is agreed that there was no actual consideration paid by Dill-man for the deed and that the express consideration was never paid nor intended by the parties, and, further, that Dillman never had any actual individual interest in the land, never asserted any nor claimed adversely to the bank, but carried the same in his name for the bank only.
Moreover, plaintiff, the insurance company, was not the owner of the land, and the Pearce mortgage, which it held and renewed, was “ancient of days,” nor was it shown ever to have been the purchase money of the land. The formal transfer of the land by the bank to Dillman was without consideration or effect so far as the redemption is concerned, and the form of transferring it to the receiver by Dillman for an express consideration of one dollar which was never paid, did not effect the redemption. It is clear that the insurance company had full knowledge of all the facts in the transaction — in fact, directed the steps taken — and is not in a position to claim it was not aware of the ownership of the land or the purpose for which the loan was made.
Under the recent case of Verdón State Bank v. Smyth, 137 Kan. 1, 18 P. 2d 897, and the undisputed facts, we must hold that the plaintiff’s loan was not for purchase money, and hence the court was not warranted in so treating it and in reducing 'the redemption period from eighteen to six months. ,
The judgment, therefore, will be reversed with the direction to enter judgment in accordance with the opinion of this court. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to quiet title to certain oil and gas leases against a lien imposed thereon to satisfy an unpaid claim for well drilling.
Plaintiffs claimed to be the owners of the leases. The Sunflower Natural Gas Company, defendant, was in possession of the leases and made the contract for the drilling. Charles McDonald, intervener, was the driller who filed the lien claim. The issues formed by the pleadings revealed the position of the Sunflower company to be largely neutral. The main conflict of interest lay between plaintiffs and intervener.
No material dispute of fact was developed by the testimony, although plaintiffs challenged the competency of much of it. It appears that in 1929 plaintiffs were the owners of certain leases, one of which was on Allen county land belonging to M. J. Baker. On April 9, 1929, plaintiffs entered into a contract to sell these leases to the Sunflower company upon terms as follows: $1,000 in cash, $1,500 on May 9, $12,500 on July 9, and stock to the amount of $2,500 in the Sunflower company. This contract and a corresponding bill of sale, together with other pertinent instruments relating thereto, were placed in escrow with an official of the First National Bank of Chanute. The first two payments under the contract were made and the Sunflower company entered into possession of the leased premises. Default was made in payment of the $12,500 due on July 9, the consequences of which had been anticipated and provided for in the contract, as follows:
. “It is by said parties mutually agreed as follows: That in case of failure or refusal, for whatsoever the reason or cause upon the part of second party to exercise this option, and to make the payment of the cash sum herein specified, and delivery certificates for stock in the sum herein named — this option shall thereupon become terminated, void and of no further effect; and said bank shall forthwith redeliver to first party all executed instruments deposited herewith.”
However, this provision of the contract was not invoked, and the Sunflower company remained in possession with the acquiescence of plaintiffs, who urged it to proceed with its work of drilling and developing the premises for production of oil and gas. In the summer of 1930 the defendant Sunflower company, with the encouragement of plaintiffs, engaged one Charles McDonald, a well driller, to drill on the Baker land. Stewart, one of these plaintiffs, selected the site for the drilling rig, and had a conversation with McDonald in which he told him he must not look to plaintiffs for his services. McDonald testified:
“I met Mr. Stewart on Main street at Chanute, Kan., prior to the drilling of this well. It was after I had moved the rig up there, but before I had drilled a foot. ...
“A. ... I says, ‘What am I going to do for my pay if the Sunflower don’t pay me — look to you for it?’ and he said, . . . ‘No; I won’t pay it.’ Yes, sir; he said that.
“Q. And he told you if you drilled out there you would have to get your money from the Sunflower, didn’t he? A. Yes, sir, that’s what he said.
“Q. Yes, sir, and on that basis, and with that clear understanding, you went ahead and drilled that well? A. Yes, sir; I did, sir.”
A producing gas well was completed on the Baker lease on September 13, 1930; and pursuant to some informal arrangement of those concerned, the proceeds of the gas runs were delivered for distribution to the officer of the Chanute bank who was serving as escrow holder. He testified that between September 29, 1930, and November 25, 1930, he received the sums of $296.08, $318.75 and $386.80 from the sales of gas runs from the well on the Baker and other leases; that plaintiff Stewart had ordered him to pay $100 to Baker on account of royalty due on the Baker lease and to apply certain proportionate amounts of his receipts to the credit of the notes which the Sunflower company had given for the purchase of the leases. Between February 25, 1930, and November 25, 1930, he had collected and disbursed $3,082.71, part of which came from the sale of gas from the well drilled by the intervener on the Baker lease.
The trial court made findings of fact and conclusions of law which occupy eighteen pages of the abstract, the net result of which was that the intervener’s lien was upheld and foreclosure thereof was decreed.
Plaintiffs appeal.
1. The point is first stressed that the intervener was informed that he must look solely to the Sunflower company and not to plaintiffs for his pay, and therefore he cannot now charge the property of plaintiffs with a lien for the well drilling. But this contention begs the question as to the ownership of the'property. Plaintiffs did own it prior to April 9, 1929. On that date they made a contract to sell it to the Sunflower company. To be sure this contract was called an “option agreement,” and elsewhere a “conditional sales contract,” but following its execution plaintiffs permitted the Sunflower company to take possession of the property and to remain in possession and to continue the exercise of dominion over it notwithstanding the third installment of the purchase price was not paid on its due date. It is familiar law that where one party to a contract has the right to terminate it for breach of its terms by the other party thereto, he must exercise his right to terminate promptly; otherwise it will be regarded as waived, especially where the other party or those in privity with him have been led to believe that the right to terminate will not be invoked. (Bloom v. Rugh, 98 Kan. 589, 160 Pac. 1135; Terwilliger v. McCorkle, 108 Kan. 480, 196 Pac. 618; Contracts, Restatement, A. L. I., §§ 296, '297.) ‘
Moreover, more than a year after default of payment of the third installment, plaintiffs urged the Sunflower company to proceed with the development of the Baker lease, selected the site for the drilling rig, and when the intervener completed the well plaintiffs accepted belated payments on the purchase notes derived from sales of gas produced therefrom. In such a situation the trial court correctly ignored the original labels of the contract and dealt with its actualities as interpreted by the conduct of the parties. The Sunflower company was the equitable owner of the property so far as concerned the validity of the intervener’s lien. (Lumber Co. v. Arnold, 88 Kan. 465, 129 Pac. 178; Miller v. Bankers Mortgage Co., 130 Kan. 543, 287 Pac. 618. See, also, Mendenhall v. Producing Co., 115 Kan. 729, 224 Pac. 926.)
We are repeatedly reminded, however, that plaintiffs informed the intervener that he must look exclusively to the Sunflower company for payment for drilling the well. That information, caution or admonition did not diminish the intervener’s rights. The law gave him a right to a lien on the leasehold, if timely filed, to secure payment for his services; and nothing plaintiffs said or could say detracted one jot or tittle therefrom. Furthermore, let us note exactly what plaintiff Stewart did say to McDonald. He said,
“No, I won’t pay for it.
“Q. And he told you if you drilled out there you wpuld have to get your money from the Sunflower, didn’t he? A. Yes, sir, that’s what he said.”
The trial court’s judgment is not out of harmony with that conversation. No judgment requiring plaintiffs to pay for McDonald’s work is entered against plaintiffs. He did not look to plaintiffs but to the Sunflower company for his pay. It did not pay, and in consequence he filed his lien against the property bound under the law to satisfy it.
2. It is next contended that plaintiffs’ lien statement did not comply with the statute, which, among other details, requires that it should set forth the name of the owner of the land, and the name of the owner of the leasehold. (R. S. 55-209; R. S. 1931 Supp. 55-207.) The lien statement named the Sunflower Natural Gas Company as the'owner of the leasehold, and under the facts narrated above it was the equitable owner of the leasehold at the time the contract for well drilling was made and when the well was completed. (Lumber Co. v. Arnold, supra.)
The other objections urged against the judgment have been carefully considered, but they do not demonstrate that substantial error inheres in the judgment of the trial court, nor do they suggest anything to warrant further discussion.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages incurred in an automobile collision. Judgment was for plaintiff. Defendant appeals.
Plaintiff was riding with her husband. He was driving south and was on the right-hand side of the road. The defendant was driving north on the same road. The collision was caused by the fact that defendant was driving on the left-hand side of the road. The collision occurred near a culvert which was located at the base of two small hills. The car of defendant was in sight of the car of plaintiff from the time their car reached the brow of the hill down which they were driving and the car of defendant reached the brow of the hill opposite. Plaintiff’s husband slackened his rate of speed somewhat, but continued to drive on the right-hand side of the road till the collision occurred. Plaintiff testified that she saw the appellant’s car shortly after they started down the hill coming on the wrong side of the road down to the point of collision. She testified that she did nothing and made no effort to induce her husband, who was driving the car, to avoid the collision.
The cars came together when the car in which plaintiff was riding had proceeded a little way past a culvert that was at the base of the hill.
The car was damaged and plaintiff was injured. During the trial of the case the following evidence was admitted on the part of plaintiff:
“Q. Was anything further said about the collision that night (May 7) ? A. He mentioned the fact of abhorring going into court, and I said that is the last thing I ever thought about.”
The introduction of this evidence was objected to by defendant on the ground that it was an attempt to prove an effort to compromise a suit.
During the same examination the following evidence with reference to a transaction that occurred between the husband of plaintiff and defendant was admitted:
“Q. What did Clements say to you that night about anything you should do on your part regarding this accident? A. He said, ‘I will tell you what I will do.’ He took a piece of paper and wrote on it, giving me the address of his brother-in-law. He said, ‘You present this to my brother-in-law and that will be that much less expense I will have to pajC
“Q. Prior to that time had he said anything about any other damage to your car? A. Yes.
“Q. What did he say with reference to that? A. Said get your bills together and we will try and settle this some way.
“Q. Did he instruct you to bring them to him? A. Yes.
“Q. Did you make an agreement at that time as to where you would meet? A. We did.” ,
Plaintiff was also permitted to identify plaintiff’s exhibit 1, and it was admitted in evidence. That exhibit is as follows:
“Mr. Ira Doling: May 7, 1930. “Dear Ira: Please take care of Mr. N. P. McComas on some glass for his car and I will settle with you. We had a collision up by Holton the other evening and I am settling this for him. (Signed) Clare,
H. C. Clements.”
The introduction of the evidence and the admission of the exhibit was objected to by defendant for the same reason urged as to the first bit of evidence just referred to.
The overruling of these objections is assigned as error. Defendant argues that the evidence to which objection was made should have been excluded because it was evidence of an attempt to compromise a lawsuit, and it is a well-established rule that compromises are favored by the courts and a party attempting to make one will not be penalized.
This is the general rule, but is stated in Kaull v. Blacker, 107 Kan. 578, 193 Pac. 182, as follows:
“An offer to compromise a difference is not admissible in evidence in an action between the parties concerning that difference, but if the offer to compromise contains an admission of fact, that may be properly introduced in evidence.” (Syl. ¶ 1.)
In considering this question another statement made by defendant should be noticed. It was as follows:
“Q. Between the time you took your wife to the farmhouse and the time you left for Topeka, state whether or not you had any conversation with the defendant about the accident. A. Yes.
“Q. State to the jury that conversation. A. He said he was very sorry it happened; that he was confused and did not know which side of the road he was on.”
No objection was made to the admission of this statement.
This statement is of value to us because it throws some light on the meaning of the statements to which objection was made, some of which were part of the same conversation. These statements taken all together do not show an effort on the part of the defendant to buy peace, but show an effort on his part to settle an admitted liability. This may be done. In Railroad Co. v. Stone, 78 Kan. 505, 97 Pac. 471, the trial court admitted a statement similar to the one admitted here.
In passing on the question, this court said:
“The statements of the fuel agent tended to show an admission of fact. A bill having been presented for the coal, he called and said he came ‘to have a talk about that coal bill that the Frisco owed.’ This evidence was properly admitted as tending to show that the company had used the coal, and the fact that the effort to settle for it failed does not destroy the probative effect of the admission nor the plaintiff’s right to use it in evidence. (2 Wig. Ev. Secs. 1061, 1062.) This does not appear to have been an effort to buy peace by offering to compromise a disputed claim, but an effort to settle an admitted liability. At least the statement of the agent tended to show such admission, and was therefore properly received. (Person v. Bowe, 79 Minn. 238, 82 N. W. 480; Brice v. Bauer, 108 N. Y. 428, 15 N. E. 695, 2 Am. St. Rep. 454; Snow v. Batchelder, 62 Mass. 513.)” (p. 510.)
In this case the question was as to whose negligence caused the collision. The statements of defendant tended to prove that the collision was caused by the negligence of defendant. We see nothing wrong in the admission of the evidence.
Defendant also argues that the evidence shows the collision was caused by the contributory negligence of plaintiff. This argument is based on the fact that plaintiff saw the car of defendant coming on the left-hand side of the road and took no action to cause her husband to avoid the collision. When the plaintiff saw the defendant driving on the left-hand side of the road toward the car in which she was riding she had a right to presume that defendant would get over to the right-hand side of the road before the cars would collide. To hold any other way would make it impossible for a driver of a car who respects the rules of the road tp get from Topeka to Kansas City in the course of a day.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a judgment creditor to set aside a conveyance of a tract of land, and to appropriate the land to satisfaction of the creditor’s judgment. Plaintiff prevailed, and defendants appeal.
W. W. Hill owned a homestead of 160 acres of land on which he resided with his wife, Myrtle Bessie Hill. He also owned another tract described as the northwest quarter of section 36 in a stated township and range, which is the land in controversy. Mrs. Hill had a daughter, Pearl Garriott, wife of Roy H. Garriott. In 1929 the Hills entered into a contract to sell the land in section 36 to the Garriotts. Hill testified Garriott could not live up to the contract, it was never consummated, and the court found it was abandoned.
In January, 1930, to obtain credit at the Citizens National bank, Hill made a property statement in which he said he owned the land in section 36, and his wife had a half interest in the homestead. On April 14, 1930, Hill conveyed the land in section 36 to his wife, and his wife conveyed to him her interest in the homestead. At that time Hill was heavily indebted to the bank, and was insolvent. The result of the transaction was that Hill acquired title to the homestead, which could not be appropriated by his creditors, and his wife acquired title to the only land which could be appropriated by Hill’s creditors.
In May, 1930, Mrs. Hill, together with her husband, conveyed the land in section 36 to the Garriotts, who gave Mrs. Hill a mortgage for $3,100 for part of the price. Subsequently the Garriotts convej'ud the land to Mrs. Hill. The mortgage was not released.
The bank reduced its claim to judgment, execution was issued, and the execution was returned, no property found. This action followed, and the court returned, among others, the following findings of fact:
“On April 14, 1930, defendant, W. W. Hill, was insolvent, and had insufficient unexempt property out of which the debt of plaintiff could be satisfied, except the northwest quarter of section 36, township 20, range 10, and defendant, W. W. Hill, has no property now with which to satisfy his indebtedness to the plaintiff.
“That said conveyances of April 14, 1930, hereinbefore mentioned, and of May 22, 1930, were made with the purpose and intent to defraud the plaintiff and' to hinder and delay it in the collection of its claim against the said W. W. Hill.
“That all of the defendants had knowledge of the foregoing facts and the intention of W. W. Hill to defraud the plaintiff and hinder and delay it in the collection of its claim against the said W. W. Hill, and knowingly participated in said transaction.”
The first assignment of error is that the court erred in overruling a demurrer to plaintiff’s evidence. The argument is that in order to find intent to defraud the court was obliged to accept indefinite and unsatisfactory testimony of a hostile witness. If the court did that, this court can do nothing about it. However,- the testimony of the witness was sufficient to show that, shortly before the conveyances of the land in section 36 were made, Hill and Mrs. Hill discussed the subject of Hill’s indebtedness to the bank, and Hill was deeding his property to his wife and the Garriotts so the bank could not get it.
The next assignment of error is that the court’s findings of fact and conclusions of law were unsupported by and were contrary to the evidence. Nothing is said about credible evidence, and the record contains much testimony of a character which might well overtax the district court’s credulity. Therefore, this court is not in position to discuss the second assignment of error. The court may, however, make this observation: It has read records in which fraudulent conveyances were more convincingly explained.
The two which have been mentioned are the only assignments of error discussed in the brief.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages to an automobile alleged to have been caused by the negligence of defendant. The trial court sustained a demurrer to plaintiff’s evidence, and he has appealed.
The. evidence, briefly stated, is as follows: That on the evening of December 13, 1930, plaintiff, with his wife, was driving his car west on Tenth avenue in Topeka; that he had crossed Topeka boulevard; that in the first block west of Topeka boulevard on Tenth avenue there are grocery and drug stores facing south; that he observed lots of traffic — -“it was jammed;” cars were parked headed toward the curb, other cars parked behind them headed west; that he drove at a speed of about ten miles per hour straight west as near to the right side of the street as he could with safety; that the lights on his car, including the tail light, were burning; that without any warning that he or his wife heard, defendant’s street car came from behind and struck the left side of his automobile, tearing off the left rear fender, running board, spare tire and front fender, straight down the side; that he stopped his automobile as soon as he could, and defendant’s motorman stopped the street car; that when they stopped the rear end of the street car was about twenty feet ahead of the automobile. The weather was not cold. The street was not slippery from rain or snow. The car was damaged about $200.
. Plaintiff’s petition, after alleging the facts, charged employee of defendant with negligence, (1) in driving the street car at an excessive Speed in view of the conditions existing, (2) in not giving warning signals of its approach, (3) in failing to keep a proper lookout, (4) in failing to stop the street car in time to avoid the collision, and further alleged that defendant’s employee had the last clear chance to avoid the collision.
While it is well settled that negligence is never presumed and must be established by proof (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599), it also is well settled that in passing on a demurrer to the evidence the trial court must consider as true all portions of the evidence which tend to prove the allegations of plaintiff’s petition, and plaintiff must be given the benefit of all inferences favorable to him which reasonably may be deduced from the testimony. (Windus v. Bodecker, 132 Kan. 857, 297 Pac. 702, and cases there cited.) Naturally the evidence, to be good as against a demurrer, must tend to show some act of negligence charged in the petition. (Byland v. Powder Co., 93 Kan. 288, 144 Pac. 282; Keck v. Jones, 97 Kan. 470, 155 Pac. 950.) Viewing the evidence in harmony with these legal principles, we conclude the evidence tended to sustain the view: (1) That considering traffic conditions at the time and place, the street car was moving at an excessive speed (Railway Co. v. Summers, 75 Kan. 342, 89 Pac. 652; Railway Co. v. Carlson, 58 Kan. 62, 48 Pac. 635); (2) that no warning of the approach of the street car was given (Avery v. Railroad Co., 73 Kan. 563, 85 Pac. 600); (3) that the jury might reasonably infer defendant’s motorman was not keeping a proper •lookout for automobiles on or near the track, and (4) that defendant’s motorman failed to stop the street car in time to avoid the collision. The case should have been submitted to the jury.
The judgment of the court below is reversed, with directions to grant a new trial. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action in replevin. Judgment was for defendants for damages. Plaintiff appeals.
The petition of plaintiff alleged the execution of a note by defendant to plaintiff. The note was secured by a chattel mortgage on some dairy cows and machinery. It further alleged that the note was in default. A writ of replevin was issued, and the property was delivered by the sheriff to the plaintiff. The answer of defendants was a general denial and contained an allegation that the defendants had been damaged in the amount of $5,000 by the taking of the property by plaintiffs. Trial of the case was to a jury. A verdict was returned for defendants fixing their damages at $2,500 for the value of the property and $750 for damages sustained.
The court instructed the jury, among other things, that in order for the plaintiff to prevail it Would have to show that it made a demand of defendants for the property in question. Plaintiff urges that this instruction was erroneous.
The cattle were replevined by plaintiff because defendants were in default on their mortgage. There is no dispute as to this in the testimony that was introduced at the trial. The record discloses that the defense made Was that defendants had made payments on the note by furnishing milk to a third party, and that if a demand had been made defendants could have raised the money some way and paid off the note. The evidence on the whole is convincing that defendants would not have surrendered possession of the cattle if demand had been made.
The rule as to necessity for a demand under such circumstances is as follows:
“No demand is necessary where it appears from the facts and circumstances of the case that a demand if made would have been futile and unavailing, and this fact may appear either from the acts or declarations of defendant in regard to the property before the action is instituted, or from the position taken by him upon the trial, as where he does not rely upon the want of a demand as a technical defense but contests the right of plaintiff upon the merits, claiming a superior right or title in himself.” (54 C. J. 452.)
This court has adopted that rule in Raper v. Harrison, 37 Kan. 243, 15 Pac. 219. That case was for replevin o.f a cow. Defendant answered the replevin suit by claiming that the cow had been security for a debt, that the debt had been discharged and that plaintiff had no right to possession. The court said:
“Having placed their defense on title in themselves, and not on the alleged consent of Harrison, and it being manifest that demand would have been vain and unavailing, they cannot now insist upon a want of demand for their failure to surrender the property; and therefore the refusal of the court to charge that a demand was essential to the maintenance of the action was not erroneous.” (p. 245.)
The subject is further dealt with in Bartlett v. Bank, 70 Kan. 126, 78 Pac. 414. In that case the defense was that the defendant had a 'right to possession of the cattle at the time the suit was brought. The second syllabus in that case lays down the rule very well for this case. It is as follows:
“In an action in replevin by the mortgagee to recover the mortgaged property the petition averred that the debt secured by the mortgage was past due and remained unpaid, and that the provision of the mortgage was that the mortgagee was entitled to the possession of the property upon default in payment. The answer, besides a general denial, substantially admitted the indebtedness, the giving of the mortgage, and the default, but charged that after the plaintiff had obtained possession of the property under the order of delivery issued in the action it was improperly and improvidently disposed of by him at a price much below its value, and prayed for a return of the property, or, if a return could not be had, a judgment for its value. Held, that the entire pleading, taken together, stated no defense to plaintiff’s recovery; that having asked the return of the property the defendant occupied the position of one-asserting his right of possession at the time of the commencement of the action, and, hence, no demand need be shown; that the sole issue in a replevin action, in the first instance, is the right of possession of the replevied property at the beginning of the action, and, hence, the plaintiff’s wrong-doing in relation to the property after the commencement of the action could not be litigated therein.” (Syl. If 2.)
In the case at bar the plaintiff made sufficient allegations to maintain an action in replevin. The defendants answered claiming damages for the unlawful taking of the property. The evidence offered was on the theory that defendants claimed the right to the possession of the property. It appears that a demand for it on the part of plaintiff would have been unavailing. Under these circumstances we think the rules discussed in this opinion apply, and the instruction of which complaint is made was erroneous.
The judgment of the trial court is reversed with directions to grant plaintiff a new trial in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for an injunction to prevent the defendant from making a track connection with the Union Pacific Railroad Company in Kansas City.
Prior to 1910 the Chicago Great Western Railroad Company, hereinafter referred to as Great Western, had a grain elevator in Kansas City. To the east of the elevator the Great Western had seven switch tracks used in connection with the elevator. These tracks had no direct or physical connection with any other track of the Great Western company. On June 15, 1910, the Great Western company and the Missouri Pacific Railway Company (predecessor of the plaintiff company), which is hereinafter referred to as the Missouri Pacific, entered into an operating contract giving to the Great Western certain trackage rights between the city of Leavenworth and Kansas City, and certain trackage and yard rights in Kansas City and other trackage rights not herein material. Under the terms of this contract the Great Western was enabled to use its elevator and its tracks appurtenant thereto. It is not disclosed clearly in what manner the Great Western used its elevator and tracks prior to said contract, but thereafter operations started under the contracts and have since continued. In so far as the matters in dispute herein are concerned, from 1910 to November 30,1930, cars to be interchanged between the Great Western and the Union Pacific were handled over a connecting track and, at least since 1918, on tracks along Front street between lines of Washington and State avenues extended in Kansas City, making a connection between the Union Pacific and the Missouri Pacific, the track of the latter company being a part of the “joint property” referred to in the contract of June 15, 1910. For such interchange no charge was made by the Missouri Pacific until November 30, 1930. On November 7, 1930, the Missouri Pacific notified the Great Western and the Union Pacific that after November 30, 1930, any interchange between the Great Western and the Union Pacific through use of the facilities of the Missouri Pacific should first be interchanged to the Missouri Pacific and handled by it as an intermediate switch line, under published tariff rates. After November 30, 1930, the use of the above connecting track was abandoned.
Although plaintiff objected to the introduction of the evidence, it further appears that on April 23, 1931, the Union Pacific obtained from the city of Kansas City the right to construct a railroad track upon and across the public levee and across State avenue, and that the same company sought from the public service commission of Kansas an order authorizing it to construct a switch track from a point on its Wyandotte spur along the levee and across the Missouri Pacific tracks and across State avenue to form a connection with the track of the Great Western (one of the seven switch tracks above mentioned). The Missouri Pacific brought suit against the Union Pacific in the district court of the United States for Kansas for a permanent injunction to prevent the Unioii Pacific from proceeding with its application before the public service com mission. On trial, relief was denied. Thereafter, the public service commission entered an amended order and authorized the Union Pacific to construct its track across the track of the Missouri Pacific, which order includes the following:
“Provided, however, That said switch track shall be used only for the interchange of traffic between Union Pacific Railroad Company and Chicago Great Western Railroad Company.”
The Missouri Pacific filed its petition in the Wyandotte county district court for a review of the order of the public service commission, and on trial the order was sustained. In March, 1932, the Union Pacific commenced construction of the track and, claiming the Missouri Pacific was interfering, filed suit for injunction against the Missouri Pacific and obtained a restraining order. The Misr souri Pacific then appealed, and the decision was adverse to it. (Union Pac. Rld. Co. v. Missouri Pac. Rld. Co., 136 Kan. 166.)
On April 15, 1932, the Missouri Pacific filed the present action and, after the opinion in the above-mentioned cause was filed, obtained a restraining order which prevented the Great Western from making a connection of one or more of its seven tracks with the track to be constructed by the Union Pacific. On July 27, 1932, the cause came on for hearing on the application for a temporary injunction and, as a result, the lower court made its order dissolving the restraining order and denying the temporary injunction. In his remarks made at the time judgment was entered, the court stated that he believed that plaintiff had an adequate remedy at law, and that, if there was any damage done by a violation of the contract, the interpretation of the parties during a long series of years was such that the court would be justified in construing it for the defendant. The Missouri Pacific appeals.
The petition alleges the execution of the contract; that the defendant was the owner of a grain elevator and railroad yard then and now comprising seven tracks connected at their northerly end with the track of the plaintiff; that said contract provided that the Great Western company shall not and will not do any local business between Leavenworth, Kan., and a designated point in Kansas City, Kan.; that the use granted is as provided in section 17 of said contract; that the defendant threatens to extend one or more of its seven tracks above referred to to connect with the track of the Union Pacific company, which is contemplated to cross one of the main lines of the Missouri Pacific lying immediately adjacent to the ends of the above-mentionéd seven stub tracks, and that so doing will deprive the plaintiff of revenue theretofore earned as an intermediate carrier; that the use granted-“for switching movements exclusively in connection with the railroad yard adjacent to the Great Western company’s elevator hereinbefore mentioned” was intended to limit the use of the plaintiff’s tracks for switch movements of cars to and from the defendant’s yards; that the right granted to the defendant was the right to use the same as established and used at the date of the contract; that, unless restrained, the Great Western will extend its stub track and make a connection with the Union Pacific and will operate its cars and train contrary to the terms, provisions and intendments of the above-mentioned contract; that, if the Great Western is permitted to do so, the plaintiff will suffer great and irreparable damage and injury, and that it has no adequate remedy at law. Thereafter the plaintiff filed an amendment and addition to its petition, alleging that both plaintiff and defendant are railroad corporations engaged in interstate commerce and subject to the control of the interstate commerce commission, under 49 U. S. C. A., section 1, paragraphs 18 to 22, inclusive; that the proposed construction by the Great Western is not a spur, industrial, team, switching or side track, but is an extension of the Great Western’s railroad to territory new to it, which has been and is being adequately served by the Missouri Pacific; that such construction has been undertaken without securing a certificate of public, convenience and necessity, all in violation of the statute.
The Great Western filed its answer and cross petition, the answer embodying a general demurrer and motion to dismiss for want of equity. The execution of the contract and of certain allegations were admitted, and general denial was made. It was specifically denied that the proposed extension of one of its seven tracks above referred to with the track of the Union Pacific was a violation of its contract with the Missouri Pacific, and that by the terms of said contract any intention was expressed to limit the use of plaintiff’s track for switching movements, or that there was any intention in said contract forbidding the deposit of cars in defendant’s yard brought in over the plaintiff’s tracks and the handling out of said yard of cars previously brought in, and that the right granted precluded the extension of one of defendant’s seven tracks, and mak ing other denials of the plaintiff’s claimed rights under the contract. By way of affirmative allegation, the Great Western alleged that it had interchanged cars with the Union Pacific for a number of years, and that only a small amount of said interchange had been handled by the Missouri Pacific as an intermediate carrier; that since November 30, 1930, the interchange had been made by means other than the use of the Missouri Pacific as an intermediate carrier; that the Great Western and the Union Pacific have parallel tracks in Kansas City and the main-line freight track of the Missouri Pacific lies between the other two, and that, for many years prior to the execution of said contract and since that time, the Union Pacific and the Great Western exchanged business at this point, using a piece of track that formed a connecting link between their lines, which connecting track came into possession of the Missouri Pacific, but that on November 30, 1930, the Missouri Pacific notified the Union Pacific and Great Western that they could no longer use this track as an interchange track, the result being to compel the Great Western and the Union Pacific to deliver their interchange cars to the Missouri Pacific for exchange, which effected the exchange in a circuitous manner. .The Great Western further denies that it is in violation of its contract to extend one or more of its seven tracks to connect with the track of the Union Pacific,' and there are no conditions in the contract which would deprive the Great Western of interchange business between it and the Union Pacific across the Missouri Pacific tracks in the yards in Kansas City where the Great Western and Union Pacific have for years enjoyed joint facilities. In its cross petition the Great Western, among other allegations, stated that on November 30, 1930, the Missouri Pacific notified it that the track theretofore used by it and the Union Pacific as an interchange track could be no longer so used; that the Union P'acific obtained a right from the city of Kansas City to construct a track to connect with the track of the Great Western; that application was duly made to the public service commission of Kansas; that the Missouri Pacific filed suit in the district court of the United States for Kansas against the Union Pacific to restrain it from proceeding with its application, and on trial its bill of complaint was dismissed; that an amended order was obtained from the public service commission; that the Missouri Pacific filed its petition for review of the order in the district court of Wyandotte county, which court sustained the order, that the Union Pacific started construction and completed the crossing over the Missouri Pacific tracks. Allegations were made that the business to be interchanged will not bring new business to either line; that the proposed connection and construction will enable the Union Pacific and the Great Western to interchange business in the same manner they did prior to November 30, 1930; that such interchange will effect economy and eliminate the Missouri Pacific from interchange operations. There are allegations that the Missouri Pacific interfered to prevent the connection being completed; that the Great Western has been damaged by previous acts, and that the damage will continue unless the Missouri Pacific is restrained. Attached to the answer and cross petition, as exhibits, are copies of the ordinance referred to, memorandum opinion in the case in the United States district court, copy of the amended order of the public service commission, and a copy of the journal entry of judgment in the suit of Union Pacific v. Missouri Pacific in the Wyandotte county court.
Although five assignments of error are made, appellant in its brief states that there are but two questions involved: (1) a construction of the contract, and (2) the right of the Great Western to connect its main line with the main line of the Union Pacific without having sought and obtained a certificate of public convenience and necessity therefor from the interstate commerce commission.
The following excerpts from the contract of June 15, 1910, cover the portions thereof necessary to be examined. In the preamble is the following:
“Whereas, The Great Western Company is the owner of ... a grain elevator and a railroad yard now comprising seven (7) tracks, connected at their northerly end with the track of the Pacific Company . . .
“Seo. 3. The Pacific Company hereby also grants to the Great Western Companjr . . . the right to jointly use ...
“(b) That portion of the track of the Pacific Company extending northwesterly from the connection with the track described in paragraph (a) of this section at or near Washington avenue, marked ‘C’ on the map' attached hereto, marked ‘Exhibit A,’ to the east side of Fourth street (marked T)’ on said map), for switching movements exclusively in connection with the railroad yard adjacent to the Great Western Company’s elevator, hereinbefore mentioned.
“Sec. 4. All of the tracks and their appurtenances, hereinbefore described, and of which the Great Western Company is granted the joint use, are hereinafter referred to as ‘joint tracks,’ or ‘joint property.’
“Sec. 5. The time during which the right to use the joint tracks is hereby granted and leased as aforesaid shall commence . . . and the Great Western Company hereby agrees to continuously use the tracks, property and other facilities of the Pacific Company as granted-by this agreement, for the full term thereof, at Leavenworth and Kansas City, Kansas, and between said cities, for the operation of its passenger and freight trains, except as herein otherwise provided.
“Sec. 6. For the use of the joint tracks and property, and the rights and privileges herein granted, the-Great Western Company hereby agrees to pay to the Pacific Company . . .
“(a) a fixed annual rental of . . .
“Sec. 10. The Pacific Company shall at all times have the right to purchase additional lands and to make such additions and betterments to or in connection with the joint property as may, in the opinion of its proper officers, be necessary or desirable for economical and safe operation.
“Sec. 16. The Great Western Company shall not and agrees that it will not do any local freight, passenger, mail or express business between Leavenworth, Kansas, and that portion of Kansas City, Kansas, lying northerly or westerly of the Kansas river or at any intermediate station between Leavenworth and the said Kansas river in said Kansas City — that is to say, local business between Leavenworth and the freight house and team tracks of the Pacific Company described in paragraph (b) of section 3 and the passenger station being erected by the Pacific Company as described in section 11 hereof, or any other point northerly or westerly of the Kansas river in said Kansas City, together with all business having origin or destination at intermediate stations, shall be deemed the exclusive business of the Pacific Company.
“Sec. 17. The use hereby granted to the Great Western Company is for its own business, including all business delivered to it by connecting lines, and the Great Western Company shall not, under cover of this agreement, permit or provide for the use by any other railroad company, or persons, of the said joint property, or haul the trains of others over the same, or any part thereof.
“Sec. 19. The Pacific Company reserves the right to grant to other persons or corporations the use of said joint property, or any part thereof, in common with themselves, and the Great Western Company, provided that the admission of such other person or corporation to a common use of said property, or any part thereof, shall not unduly or unreasonably hinder or obstruct the Great Western Company in the exercise of the rights granted hereunder.”
Appellant contends that under the provisions of sections 3, 10, 16, 17 and 19, the appellee has no right to connect its switch tracks with the Union Pacific and eliminate the appellant as an intermediate carrier, and the appellee on its part contends that the contract does not so prevent, or if there is ambiguity in the contract that the operative construction given it by the parties precludes up holding appellant’s contention. In construing the contract, we are concerned primarily with the obligations of the Great Western. In the preamble the Great Western is described as owner of seven tracks and, under section 3, it has use of joint property as defined in section 4 “for switching movements exclusively in connection with the railroad yard adjacent to the Great Western Company’s elevator, hereinbefore mentioned.” The Great Western’s obligation, under section 5, is to “continuously use the tracks, property and other facilities of the Pacific Company, as granted by this agreement” and, under section 6, to pay for such joint use a stipulated annual rental and certain maintenance charges. Its negative obligation, under section 16, is not to engage in local business between Kansas City, Kan., and Leavenworth and, under section 17, the use granted to the Great Western is for its own business, “including all business delivered to it by connecting lines,” etc.
It will be observed that the above contract binds the Great Western to use the joint property continuously, but not exclusively, unless the expression in section 3 does so. The meaning of the contract must be determined from all its parts, and not from an isolated clause or paragraph, and section 3 is modified by section 17, which provides that the use is granted for “its own business, including all business delivered to it by connecting lines.” It might well be held that, under the contract, there being no provisions prohibiting it, the Great Western was at liberty at any time to connect any one of its seven tracks with the Union Pacific or any other road it could reach. But whether the above is a correct construction of the contract itself, the record discloses that during all the life of the contract cars were interchanged by the Great Western and the Union Pacific, using a switch track of the Union Pacific and the joint property described in the contract, and that no objection was made by the Missouri Pacific until November, 1930, when the Missouri Pacific demanded that it be recognized as an intermediate carrier and paid certain switching or interchange charges according to its published tariffs. To ascertain the rights and liabilities of parties to a contract, and what is intended by the contract, courts will look to the language employed, the subject matter and the surrounding circumstances, and the construction given a contract by both parties through a term of years is persuasive in arriving at their intention and purpose. Berg v. Scully, 120 Kan. 637, 641, 245 Pac. 119. It must be held that under the contract, and under the undisputed evi dence of operations thereunder, the Great Western and the Union Pacific had the right to interchange cars without using the Missouri Pacific as an intermediate carrier, and that by reason of the contract and the operations under it the Missouri Pacific cannot now deny the right of the Great Western to make a direct track connection with the Union Pacific and to make direct interchange of cars. On the other hand, if the Great Western and Union Pacific exchange cars by reason of a connection made or to be made by extension of a Great Western switch track to connect with the Union Pacific track, and such exchange is in violation of the contract between the,Great Western and Missouri Pacific, the damage flowing from such breach is ascertainable in money, and the Missouri Pacific would have an adequate remedy at law, and the injunction sought should be denied.
The appellant contends that the proposed connection is one that can be made only under authority granted by the interstate commerce commission under the provisions of 49 U. S. C. A., section 1, paragraphs 18 to 22, inclusive, section 22 of which reads as follows:
“The authority of the commission conferred by paragraphs (18) to (21), both inclusive, shall not extend to the construction or abandonment of spur, industrial, team, switching or side tracks, located or to be located wholly within one state,” etc.
The appellant says the proposed connection is an extension of the roads of the Great Western and of the Union Pacific, while the appellee says the connection is a switching track to be used only for switching and interchange of cars. The contention made by the appellee that appellant is not a party in interest and cannot raise the question as to the necessity of procuring the required authority is not good. See Claiborne-Annapolis Ferry v. U. S., 285 U. S. 382, 52 Sup. Ct. 440, 76 L. Ed. 808. Appellant relies upon People v. Public Service Commission, 233 N. Y. 113, 135 N. E. 195, 22 A. L. R. 1073, and upon Alabama Ry. v. Jackson By., 271 U. S. 244, 46 Sup. Ct. 535, 70 L. Ed. 928, but in each of these cases attempts to force connections were resisted by one of the carriers involved and in each case the court found, under the facts, that the tracks ordered built were not within the statutory exception.
In Detroit & M. Ry. Co. v. Boyne City, G. & A. R. Co., 286 Fed. 540, 547, in a case arising under the transportation act, supra, the distinction between extensions and switches was made, viz.:
“. . . the distinguishing feature between ‘extensions’ and ‘new lines’ on the one hand, and ‘spur, industrial, team, switching or side tracks,’ on the other, as used in this statute, is this: That the former are tracks over which there are to be train movements in the sense that such movements are a part of the actual transportation haul from the shipper to the consignee, while the latter named tracks are for use in loading, reloading, storing, and switching the cars and other things merely incidental to the regular train haul.”
The record shows that the entire track to be constructed is approximately three hundred and fifty (350) feet long and the cost thereof approximately two thousand three hundred dollars ($2,300) and that it is completed with the exception of about ten feet. The evidence showing the previous method of operation between the Great Western and the Union Pacific and the purposes to be accomplished by the proposed switch connection precludes an interpretation that trains are to be run from the Union Pacific over this switch connection and thence on over Great Western switch tracks and thence over the joint property described in the contract, or in a reverse manner, but shows that all that is intended or is to be accomplished is a switching of cars to be interchanged, and the order of the public service commission so restricts the use of the connection.
In the action for injunction brought in the United States district court by the Missouri Pacific against the Union Pacific, the construction of track by the Union Pacific and the crossing of the Missouri Pacific track to connect with the Great Western track was held not to be such construction as required a certificate of public convenience and necessity from the interstate commerce commission. While that decision and holding is not res judicata in this cause, it is persuasive. It is difficult to see why authority is not required for one end of the line but is required for the other.
It is held that the connecting track involved in this cause is a “switch” and not an “extension,” and authority from the interstate commerce commission is not necessary.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to recover upon a fire insurance policy where the defense is that it is void because of procuring additional insurance without the consent of the insurance company. The trial court made findings of fact and conclusions of law. The decision was against the insurance company, and it appeals.
The plaintiff is a life insurance company and, as holder of the mortgage on the property insured, brings the action, after the complete destruction of the property by fire, under the usual form of mortgage-clause assignment of the policy. The property owner was impleaded by the defendant company, and he repleaded the allegations of the petition, and, further, that the fire insurance company had waived the provision of the policy as to additional insurance, consenting thereto, and was estopped from asserting it. The fire insurance company then tendered the plaintiff the full amount of the policy with interest and asked to be subrogated to the rights of the mortgagee against the insured.
The trial court held the issues to be between the fire insurance company and the insured with the burden of proof on the latter.
Appellant assigns as errors many adverse rulings of the trial court made in preliminary matters and during the progress of the trial and forcibly argues and presents them in its brief, but because the motion for new trial was filed within three days after the ruling upon the motion to modify the findings of fact and more than three days after the filing of the findings, these questions are not properly here for review. In the case of Brubaker v. Brubaker, 74 Kan. 220, 86 Pac. 455, the following construction was placed upon the statute, R. S. 60-3003, with reference to the time of filing such motion in cases where findings of facts and conclusions of law were made:
“Where a case is tried without the intervention of a jury, and the court files findings of fact and conclusions of law which include a determination of the general issue, either party aggrieved by rulings made during the trial, in order to procure their reviews here, must file a motion for a new trial within three days from the time such findings and conclusions are made, irrespective of the time judgment is rendered.” (Syl.)
And in a recent case the matters and things eliminated under such circumstances are enumerated as follows:
“. . . the findings of fact are not-assailable on any ground on which a timely motion for new trial might have been based. The court may not consider whether the trial was fairly conducted, whether evidence was erroneously admitted or rejected, or whether the findings were sustained by evidence. . . . Therefore, the findings of fact stand as the unquestioned facts of the case.” (Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, 381, 291 Pac. 935. See, also, Oliver Farm, Equipment Co. v. Foster, 134 Kan. 654, 8 P. 2d 364.)
The findings of fact show that Durham, the owner of a tract of land in Butler county, insured the two-story brick building thereon for $2,000 with the defendant company through its agent, C. D. Knote, with office or place of business at Douglass, Kan. This is the policy on which this action has been brought. Thereafter the owner made extensive improvements on the dwelling and a few months later applied to the same agent for an additional policy because of the improved condition of the property. The application for $1,500 additional insurance on the house was taken by the agent, Knote, and sent in to the defendant company. The application was approved by the company, the policy was issued and forwarded to the agent Knote for delivery, but it carried a higher rate of premium than the first, being written at the tenant rate instead of the owner rate, and to this the owner objected. Findings 6, 7, 8, 9 and 10 are as follows:
“6. Durham then called at the central offices at Wichita and was referred to Ed Y. Dukes, superintendent of agencies and who also had charge of the underwriting work of the company. They discussed the matter of premium and Durham advised Dukes that he would cancel the policy, as he could secure a policy under the old rates from another company and that he would do so. Dukes told him that if he could do this, to go ahead and get the other policy.
“7. Thereafter, in August, 1930, Durham took out an additional fire insurance policy in the amount of $1,000 on the house involved, with the Preferred Risk Fire Insurance Company.
“8. In November, 1930, the house was totally destroyed by fire. Its value exceeded the total of both the fire insurance policies carried upon it.
“9. The Central States Fire Insurance Company consented to Durham’s taking out additional insurance in another company. Also at the time of the issuance of the second policy the agent in Douglass, of the Preferred Risk Company, went to Knote, agent of the Central States Fire Insurance Company, and informed him that he was writing the new policy, and secured information from him for the application.
“10. After the fire one Larkin, an insurance adjuster representing both the Central States and the Preferred Risk Companies, visited the scene of the fire with Durham and made a report for both companies. Somewhere between 30 and 60 days after the fire Durham took the matter of payment of the policy up with an agent of the Central States Company, was informed by the agent that he did not think the company was liable for the full amount, and the agent then told Durham that he would pay the premium back to him. The same has not been paid. The Central States Company tendered into court the face of the policy and asked to be subrogated. That Durham would have refused to accept the return of the premium if the agent had at that time actually tendered him the money.”
The policy enumerated a number of grounds which would render it “null and void, unless otherwise provided by agreement indorsed hereon,” among which was the following: “or if the assured shall now have or hereafter make or procure any other contract of insurance whether valid or not.”
No consent to procure additional insurance was indorsed on the policy. The court, in finding No. 9, found that consent was given, presumably by Dukes, the superintendent of agencies, as mentioned in finding No. 7. In addition to this, finding No. 9 shows that knowledge was brought home to Knote, the soliciting agent, at the time the second policy was being prepared by the agent of the other company.
Many authorities are cited by the appellant upholding the provision in the policy rendering it null and void in case of additional insurance being taken without being authorized. There is no contention as to the general rule, but the finding here of consent given was necessarily a verbal consent instead of one indorsed on the policy.
The case of Metropolitan Life Ins. Co. v. Mennonite Mutual Fire Ins. Co., 131 Kan. 628, 293 Pac. 402, cited by appellant, upholding this rule, does not assist us much in the case at bar, for there the additional policies were taken without any knowledge or notice of the original insurance company and with the deliberate intention to discontinue the original by not paying the new and necessary premium demanded thereon.
The case of Pettijohn v. Insurance Co., 100 Kan. 482, 164 Pac. 1096, cited by appellant, is quite similar in several respects to the case at bar. There the owner, after taking out the original insurance, was solicited to take out more on the property, as it would stand more. To this the owner replied he was intending to take more insurance but wanted it to be in different companies. After taking out two additional policies he told the soliciting agent he had done so, and the agent said he was sorry to lose the business. The judgment rendered for plaintiff was reversed, because the agent was not a general agent and the abrogation of the rule was only evident by the expressed willingness on the part of the soliciting agent to endeavor to get another risk for his company. Very different in the instant case, where the soliciting agent not only sent in the application, but the policy was written up by the company in an amount $500 in excess of the one later written by another company. It was not a case of overinsurance, as the court' found the value of the property exceeded the total of both policies.
In the case of Palin v. Insurance Co., 92 Kan. 401, 140 Pac. 886, .the taking out of additional insurance in line with a distinct arrangement with the soliciting agent at the time the application for the original policy was signed, was held not to invalidate the original, based upon the rule announced in the case of Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245, as to the agent in such matters being the agent of the company and not the agent of the owner.
“Where a fire insurance soliciting agent makes a temporary concession waiving the keeping of the inventory and books in an iron safe for a week, and writes answers to other questions in the application different from the facts and answers given him by the applicant, and he fully informs the general agent of such matters, and the general agent, with such information and knowledge, writes the policy and sends it to the applicant through the soliciting agent, such information becomes the knowledge of the company and it will be bound thereby.” (Boberg v. Fitchburg Mutual Fire Ins. Co., 127 Kan. 787, syl. ¶ 1, 275 Pac. 211.)
Not only did the defendant company in this case show its willingness to waive this restriction by writing an additional policy itself, but its superintendent of agencies told the insured, when he spoke of getting it from another company at the old rate, to go ahead and get it. The purpose of the provision prohibiting additional insurance is mainly to avoid the risk of overinsurance, which in this case is entirely eliminated as the company was ready and willing to carry $1,500 additional on the property, whereas the additional policy written by another company is only for $1,000.
Appellee points out and urges that the policy itself by its printed terms permitted additional insurance by reason of two other provisions in the policy which amount to a distinct waiver of the provisions heretofore cited. They are as follows:
“In case of any other insurance upon the within described property, this company shall not be liable to said mortgagee for a greater proportion of any loss or damage to the within described property than the sum hereby insured bears to the whole amount of insurance on said property.
“In case of loss, this company shall be entitled to the pro rata contribution of any other insurance, whether valid or invalid, upon the property hereby insured, which contribution shall apply to any articles hereby insured which may be specifically excluded by the terms of such insurance.”
The liability of the defendant company is at least limited by these provisions in case the property is overinsured.
The findings of the court show a distinct and sufficient waiver of the restriction and a consent to the additional insurance by the superintendent of agencies, an officer of the company, and by reason of such waiver the defendant company is estopped to claim the' policy was rendered null and void by the taking out of the additional insurance. On these findings the conclusion of the trial court against the defendant company was based, and in this we concur. This being the conclusion as to the issues between the fire insurance company and the insured, the appellant is not entitled to the subrogation asked in its answer.
Appellant insists that the taxing of costs to it and' including in the costs an attorney fee of $500 was improper under the pleadings and facts in this case, especially because it had made a tender to the plaintiff mortgagee in its answer and in open court before the taking of any testimony. The attorney for plaintiff declined to accept the tender as such without the rendition of a judgment therefor, not wishing to waive any right to the allowance of attorney fee and costs of the action. The statute providing for attorney' fee and costs, R. S. 1931 Supp. 40-908, is as follows:
“That in all actions now pending, or hereafter commenced, in which judgment is rendered against any insurance company on any policy given to insure any property in this state against loss by fire, tornado, lightning or hail, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.”
It would seem that where no judgment was rendered a fee for attorney might not be allowable. At any rate a judgment was rendered in this case at the conclusion of the trial and a fee of $500 was by the court allowed, of which $200 was for the attorneys for plaintiff and $300 for the attorney for Durham, the insured. We find no error in this part of the. judgment. (See Light v. St. Paul Fire & Marine Ins. Co., 132 Kan. 486, 296 Pac. 701; and Holyfield v. Farmers Alliance Ins. Co., 132 Kan. 539, 296 Pac. 710.)
The judgment is affirmed.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Johnston, C. J.:
David W. Wilhite brought this action against Lee Judy, police judge, and Bina S. Quick, as clerk of the police court, to compel defendants to accept and to prove an appeal bond in an attempted appeal from a judgment of the police court. It was determined that plaintiff was not entitled to the writ, and plaintiff appeals from the judgment of the district court.
Plaintiff was arrested for violation of a traffic ordinance of the city in driving through a stop sign on the street, and put up a cash bond of $7.50 for his appearance in police court the following morning. He did appear, and the trial resulted in his conviction and a fine of $3.50 was adjudged against him, after which he left the court room without taking any action. He had authorized the chief of police that in case he was convicted the officer should take the amount of his fine and costs out of the cash bond he had posted when arrested. The following is a copy of the written authority:
“If I fail to appear in police court at 8 a. m. June 24, 1932, or at any time to which this case may be continued, we and each of us authorize the chief, captain of police or police judge, to forfeit this bond. And if found guilty when tried, each of us authorize the chief or captain of police to take such fine and cost out of this bond. David W. Wilhite."
The chief of police, in accordance with the authority given, took the money deposited and placed it with the city treasurer, it being the duty of the chief of police to make daily returns of all fines paid by offenders. Three days later Wilhite appeared and presented to the police court an appeal bond and asked to have it accepted and approved, but the fine having been paid, the judgment discharged and the money placed with the city treasurer, the court denied the application. Wilhite then brought this mandamus action in the district court to compel the approval of the appeal bond presented, but the district court refused to grant the writ and this appeal followed.
When the adjudged fine had been paid as the plaintiff directed, the judgment was satisfied and discharged and the prosecution effectually ended. The payment constituted an acquiescence of the judgment and necessarily defeats an appeal. The plaintiff states that immediately after the conviction he applied in the city clerk’s office for a blank appeal bond and was told he would have to wait until court, then sitting, was over. .He did not prepare and present a bond and did not tender an appeal bond until three days later when the fine had been paid out of the deposit as he had directed. It was not incumbent on the clerk to procure a blank for the use of plaintiff nor to assist in the preparation of a bond. He knew how to effect an appeal and could in a few minutes have written a bond containing the provisions in the ordinary blank. It is to be noted that the defendant did not countermand the order to use the deposit he had made to pay the fine if he was found guilty, and it constituted ample authority for its application in discharge of the judgment. It has been expressly decided that payment of fine and costs bars an appeal from the judgment imposing them. A defendant cannot yield obedience to a judgment and afterwards appeal from it. He cannot do so even though the judgment is paid under protest and where in complying with the judgment he undertook to reserve the right of appeal. (State v. Conkling, 54 Kan. 108, 37 Pac. 992.) It was there said:
“It appears that the sentence of the law has been executed, and nothing is left for further controversy. By his own act, Conkling has satisfied and discharged the judgment entered against him. His protest and attempt to reserve the right of appeal are unavailing. The statute does not provide for nor contemplate an appeal from a discharged judgment.”
See, also, Fenlon v. Goodwin, 35 Kan. 123, 10 Pac. 553; Railroad Co. v. Murray, 57 Kan. 697, 47 Pac. 835; Seaverns v. The State, 76 Kan. 920, 93 Pac. 163; State v. Massa, 90 Kan. 129, 132 Pac. 1182; Bank v. Bracey, 112 Kan. 677, 212 Pac. 675; Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750; Paulsen v. McCormack, 133 Kan. 523, 1 P. 2d 259.
The court ruled correctly in denying the writ of mandamus and its judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover a money judgment on account of a controversy growing out of sales of bonds.
The petition contains numbered paragraphs, the first alleging residence, etc., of the plaintiff, the second that defendant is a Kansas corporation and that at all times mentioned it has maintained an office and place of business in El Dorado, Kan. The third paragraph charges that defendant was aware that plaintiff owned Kansas municipal bonds maturing from time to time and acting through its agent and representative, Murray T. Crummer, solicited plaintiff to purchase bonds and securities as he might require, and “orally promised and agreed that with, respect to any and all bonds or other securities which the plaintiff might at any time acquire from the de fendant, the defendant would repurchase the same on plaintiff’s demand for an amount equal to the original purchase price with accrued interest,” etc. The fourth paragraph charges that on June 26, 1926, defendant, through its agent, Crammer, solicited plaintiff to purchase certain Hidalgo county, Texas, refunding warrants, representing they were as safe and sound for investment as any Kansas municipal bonds; that they were gilt-edge securities, that defendant had experts investigate the warrants thoroughly and carefully and they constituted as safe an investment as plaintiff could make; that plaintiff informed defendant’s agent he was without knowledge as to said securities and if he purchased he would do so solely in reliance upon defendant’s statements, and that defendant’s agent repeated the oral repurchase agreement, and plaintiff, believing and relying upon such oral promises, statements and agreements, purchased said warrants. In paragraphs 5 to 10, both inclusive, similar allegations are made with respect to six other bond purchases. The eleventh paragraph repeats the allegation that plaintiff was without knowledge as to the value of the bonds and securities, imposed confidence in defendant’s agent and bought relying upon his statements and promises, and that defendant was aware thereof. The twelfth paragraph alleges that defendant's oral promises, statements and agreements were false, fraudulent and untrue, that the securities sold to plaintiff were nót as safe and sound for investment as any Kansas municipal bond, that defendant had not had experts investigate, and they did not constitute a safe investment; that defendant never had any intention of carrying out its repurchase agreement unless it was to its advantage so to do and entered into such agreement fraudulently to induce plaintiff to purchase; that plaintiff acted in good faith and defendant in bad faith, and that “Plaintiff did not learn or ascertain of the falsity of such statements, agreements and representations and of the bad faith of the defendant in the premises until within six months next preceding the filing of this petition.” The thirteenth paragraph alleges matter with respect to the worth of the bonds and securities. The fourteenth paragraph alleges that on February 20, 1932, plaintiff served on defendant’s agent, Crammer, a written demand that defendant repurchase said bonds, etc., a copy being attached to the petition, and that notwithstanding defendant neglected and refused to purchase said bonds and securities or any of them; that plaintiff is ready, able and willing to deliver the bonds, etc., to defendant upon repurchase, and tenders same into court, etc. The remaining paragraph is a prayer for a money judgment and for such other and further relief as plaintiff may be entitled to and for costs.
Summons was issued and served by the sheriff of Butler county, whose return shows he summoned the Brown-Crummer Investment Company, a corporation, by delivering to M. T. Crummer, agent for and on behalf of said company, at its office and usual place of business in El Dorado, a copy thereof; that he could not find the president, vice president, treasurer, cashier, trustee, chairman of the board of directors, or other managing officers of said company in Butler county; that no person on whom service could be made in Butler county had been appointed by the defendant and that after endeavoring to get service on the officers of the company he made service on M. T. Crummer, agent, he being the person in charge of the office and usual place of business of said company in El Dorado, and he being the person held out to the public by said company as their agent and representative at El Dorado. “Hence I made service on M. T. Crummer, agent, by delivering to him a copy of the summons herein . . .”
The defendant appeared specially and moved to set aside the service on eleven grounds. After hearing thereon, to which reference will be made, the motion was denied. Defendant then filed its plea in abatement, raising, in substance, the same matters that were presented on its motion to set aside the service, which plea was overruled. Defendant then filed a motion to compel plaintiff to separately state and number his several causes of action, which motion was denied. Defendant then filed a motion to require plaintiff to elect, in which allegations are made as to causes of action on repurchase contract, for relief on account of fraud, for rescission, etc., being blended, confused and intermingled, and to require plaintiff to elect which of the several inconsistent remedies he will pursue, which motion the court denied. Then followed a motion asking that plaintiff make his petition more definite and certain and to strike, and this motion was likewise denied.
The defendant then filed its demurrer, setting up all of the statutory grounds except that another action was pending between the same parties for the same cause. The demurrer was overruled and defendant given time to answer.
The defendant appeals from each and all of the above mentioned rulings, and so far as need be they will be noticed seriatim:
On the hearing on the motion to quash, evidence was taken as to the status of the company, where its principal place of business was, the agency, powers and duties of M. T. Crummer, the particular manner in which Crummer was served, whether or not the defendant company maintained a branch office in El Dorado, and thereafter the court overruled the motion. In connection with the argument as to the correctness of the court's ruling, much space is devoted to whether, by reason of one statement therein, the defendant company entered a general appearance, but our conclusion obviates any necessity of discussing that feature. In connection with venue of actions against domestic corporations, our code provides that, except in instances not material here, an action “may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or may be summoned,” etc. (R. S. 60-504). And R. S. 60-509 provides that every other action must be brought in the county in which the defendant or some one of the defendants resides or may be summoned. R. S. 60-2518 provides for service of a summons on a corporation, viz.:
“A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof.”
The court’s ruling on the motion to quash implies a finding favorable to the plaintiff as to the issue whether defendant had a branch office in El Dorado, and as to any other facts in issue with reference to Crummer’s and the company’s status, and includes the finding that the company had a branch office and was situated in El Dorado. The return, while possibly inconsistent in some of its recitals, shows that those persons denominated as “chief officers” were not found in the county, nor the cashier, treasurer, secretary or clerk, and that therefore service was made upon “M. T. Crummer, agent, he being the person in charge of the office and usual place of business of said company." The term “managing agent” was not used in the return, but the trial court, after hearing disputed evidence as to his powers and duties and the general operations of the defendant company and its agent in El Dorado, held service upon him good as against .the company. Without reviewing what is said therein, we are of the opinion that under McLeod v. Trusler Grain Co., 127 Kan. 119, 272 Pac. 119, the service was good, and that the trial court’s ruling was correct.
As substantially the same questions were raised by the plea in abatement as were raised by the motion to quash, it will not be discussed.
So far as the motion to separately state and number is concerned,, it must first be remarked that the matter is addressed to the discretion of the trial court (R. S. 60-741), and there is nothing here to show any abuse of that discretion. It is not apparent, at this time, as will be discussed later, whether there are several causes of action. It may be noted that the paragraphs of the petition are numbered, and at least so far as the statements of fact now contained are concerned, little difficulty need be experienced in following out the various transactions enumerated, whether it ultimately develops that one or more causes of action are stated, and although more properly to be hereafter discussed, it may be said that on account of the court’s discretion in the matter, its ruling cannot be construed either as holding there is one cause of action to enforce the repurchase agreement or one cause or several causes of action for relief on the ground of fraud.
On the assumption that inconsistent causes of action were intermingled and that inconsistent remedies were sought, defendant filed its motion to compel plaintiff to elect, and after this motion was denied filed its motion to make definite and certain and to strike. These motions will be discussed together. Appellant contends that the petition, viewed from one aspect, is on the contract of repurchase and, if so, is in affirmance of the contract; or, from another aspect, is for rescission and relief on the ground of fraud; or, from another aspect, for damages on account of fraud. Assuming correctness, for the time being, of either construction, the first two would be actions ex contractu and the third ex delicto. While the prayer is no part of the petition, it may sometimes be referred to to assist in determining the character of the pleading, and the petition here, read in connection with the prayer, shows that the action is not for damages arising in tort. If it were doubtful whether the action was on contract or in tort, every intendment would be resolved in favor of construing it as an action on contract. See Railway Co. v. Hutchings, 78 Kan. 758, 99 Pac. 230, and Delaney v. Implement Co., 79 Kan. 126, 98 Kan. 781.
It will be noted that appellee pleads a contract of repurchase and that shortly before the filing of the petition demand for performance thereof was made. This would be in affirmance of the contract. It will also be noted that the petition alleges facts constituting fraud and that the fraud was discovered within six months preceding the filing of the petition and it could, therefore, be said that the action is for rescission, for thé prayer asks for a money judgment which at least approximates the face value of the bonds and accrued interest. One aspect is that plaintiff seeks to affirm tire contract; the other is that he seeks to disaffirm it. Plaintiff cites Cockrell v. Henderson, 81 Kan. 335, 105 Pac: 443, and other cases of similar import and contends that under them and the provisions of the code (R. S. 60-704) all he need do is to state his facts in ordinary and concise language; that his petition is sufficient, is not subject to motion to make definite and certain, to strike, or to compel an election. In the above cited case, however, no motions were made and no question raised until on demurrer to the evidence. Here a motion was filed in due time to ascertain whether plaintiff discovered the fraud before or after he served his demand for repurchase. If it developed that the discovery of fraud was first, then it might be said the fraud was waived and that plaintiff had elected to stand on his repurchase contract, in which event the allegations with respect to fraud were immaterial and subject to being stricken out. If the fraud were discovered after the notice to repurchase was served, then the action might proceed for rescission. Plaintiff, in argument, says that if he had an election in the matter, it was made when the demand for repurchase was made and that nothing he now says will change the situation. That may possibly be true, but in the present state of the pleadings it cannot be ascertained whether the demand was served before or after the fraud was discovered and, therefore, ■whether or not an election has been made. Neither can it be said that the allegation that when defendant made the repurchase agreement it had no intention to perform it, is decisive. All of this might be proved and warrant rescission on the ground of fraud, yet whenever a repurchase agreement is proved, it would warrant relief under the terms of the agreement even though defendant never intended to perform it.
In Spaulding v. Dague, 120 Kan. 510, 243 Pac. 1045, the syllabus states:
“Where one conveys land for a valuable consideration and contends that he was induced to execute the conveyance because of an agreement made by the grantee to reconvey on certain terms, he must either disaffirm the conveyance and seek to set it aside for fraud or some other sufficient reason, or affirm the conveyance and rely upon the agreement to reconvey.”
In Bonsteel v. White, 127 Kan. 843, 845, 275 Pac. 163, it was said:
“A pleader cannot affirm and disaffirm a contract where it has to do with remedies and the election thereof.”
And see Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; Hamilton v. McGinnis, 119 Kan. 719, 241 Pac. 690; Pitt v. Keenan, 124 Kan. 810, 262 Pac. 567; Baltimore American Ins. Co. v. Zimmerman, 127 Kan. 145, 272 Pac. 165, and cases cited therein.
It is apparent that plaintiff could proceed on one theory, but he could not on both. Defendant’s motion to make definite and certain and to strike involved other matters than those discussed here, but it is clear that, in part, at least, it should have been sustained. Plaintiff should have been compelled to state the date he discovered the fraud complained of or, if impossible to state the exact date, to state whether it was before or after service of the demand for repurchase. After such an amendment had been made, then the question of whether or not parts of the petition should or should not be stricken out could be intelligently considered. In the present state of the pleadings more cannot be said as to this feature.
In Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619, it was held that plaintiff must frame his petition on a distinct and definite theory, and upon that theory the facts alleged must state a good cause of action. The case has been cited on a number of occasions, and the force thereof has been diminished. Some of the later cases are: Tire Co. v. Kirk, 102 Kan. 418, 420, 170 Pac. 811; Wendel v. Implement Co., 112 Kan. 336, 337, 210 Pac. 1100; Brooks v. Weik, 114 Kan. 402, 408, 219 Pac. 528; Cramer v. Overfield, 115 Kan. 197, 198, 222 Pac. 85; and McDowell v. Geist, 134 Kan. 789, 793, 8 P. 2d 372.
Without reviewing the distinctions made in the above decisions, it may be said that, notwithstanding the greater liberality now allowed, some weight is to be given to the fact that defendant promptly filed its motions in an effort to learn whether plaintiff was suing for rescission on account of fraud, or for the enforcement of the repurchase agreement. The plaintiff resisted all of these motions, and now, while it may be possible by slighting certain allegations — and which are to be slighted depends on what result is to be reached — to say that the petition states a distinct cause of action for a distinct remedy, defendant is entitled to know which. No one would argue that plaintiff could frame an out-and-out petition for rescission on the ground of fraud, and, if defeated thereon, could then start over and frame one on the theory of a repurchase agreement and try it out. See Baltimore American Ins. Co. v. Zimmerman, supra, and cases cited therein. While the general rule is that where a general demurrer is' filed to a petition, no motion to make it more definite having been presented, the demurrer should be overruled if the facts stated constitute a cause of action, whether well pleaded or not (Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557), and inconsistent causes- of action or inconsistent defenses do not render the pleading demurrable (Fetzer v. Williams, 80 Kan. 554, 103 Pac. 77; Brooks v. Weik, supra; Trousdale v. Amerman, 124 Kan. 614, 261 Pac. 826), a somewhat different rule must be applied where plaintiff, as a result of procuring rulings favorable to him, defeats every effort of the defendant to ascertain on what theory he founds his cause of action.' (Stewart v. Balderston, 10 Kan. 131; Mergen v. Railroad Co., 104 Kan. 811, 812,180 Pac. 736.) If the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient. (See Dassler’s Kan. Civ. Code, 2d ed., 220, and cases cited.) Under the circumstances of this case it is impossible to determine on what definite theory the plaintiff seeks recovery or on which of two inconsistent theories he relies, and the demurrer should have been sustained. (49 C. J. 379, 385.)
In the briefs authorities other than those referred to are cited, but time and space forbid a discussion of each of them. There is also considerable discussion with reference to the force and effect of repurchase agreements and the time within which actions to enforce the same must be brought. It is premature to discuss this phase of the matter; when the petition is amended it may not state a cause based on the repurchase agreement.
The rulings of the trial court with respect to the motion to quash the service of summons and the plea in abatement are sustained, as is the ruling on the motion to separately state and number. On account of the erroneous rulings on the motion to make definite and certain and to strike and on the demurrer, the cause is reversed and remanded for further proceedings consistent herewith. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover a sum of money which plaintiff alleged defendant wrongfully withheld. The judgment was for defendant, and plaintiff appeals.
In June, 1924, defendant sold to plaintiff a guaranteed first-mortgage, six per cent savings bond, whereby, in consideration of $360 paid annually in advance for ten years, defendant guaranteed to pay to plaintiff $5,000 at the end of the ten-year period. If payments were made monthly, they were $6.15 per thousand, or $30.75 on the bond purchased, and plaintiff chose the monthly plan. The bond provided for cash surrender values at the end of each year, beginning with the end of the second year. Plaintiff made the initial payment of $30.75 when he made application for the bond, and made monthly payments for some four years and nine months, in the total sum of $1,752.75. In March, 1929, defendant elected to surrender the bond, and received the stipulated cash withdrawal value, in the sum of $1,170. In November, 1929, plaintiff sued defendant for $793, claiming he was entitled to all the money he had paid in, with six per cent interest up to time of withdrawal.
The petition stated a cause of action based on misrepresentation of defendant’s agent, who negotiated the sale, of what the terms of the bond would be. The representation was that plaintiff could get all his money back any time he asked for it, with six per cent interest.
■ Plaintiff testified to the conversation in which the representation was made. Plaintiff also testified the agent exhibited to plaintiff the outside of a sample bond, to show how the bond would look when received, and the agent said, “Then you want to read it.” Pursuant to the conversation, plaintiff signed an application for a bond and made the initial payment, for which a receipt was given. The application contained the following provision:
“Any statement made by salesman at variance with the bond shall not be binding on the company.”
The statement contained in the application, together with the agent’s direction to plaintiff to read his bond when he received it, put plaintiff on guard against possible variance between the agent’s statements and the bond. Such variance might result from misunderstanding of the conversation by plaintiff, or from attempt of the agent to deceive. If the admonition were heeded, the cause of variance could be cleared up before plaintiff accepted the bond and the parties became committed to fulfillment of the contract.
Plaintiff testified he received the bond in a heavy letter from Topeka (where the company’s office was maintained), on which plaintiff saw the words “The Bankers Mortgage Company.” He did not open the letter, but put it in his pocket, and then hid it in a trunk and locked the trunk. He did not open the letter until March, 1929, when, because of sickness, he needed money. Meantime, as indicated, he had been making regular payments on the bond at proper times and of proper amounts.
Plaintiff lived in Kansas City, Kan. In March, 1929, plaintiff’s wife went to Topeka. She returned, and said he could get only $1,170. . Plaintiff sent his wife back to Topeka, and “she brought back a paper to sign to get the $1,170.” He needed the money for the expense of sickness, which still confined him to his bed, and he signed the paper. The paper was an election to surrender the bond and accept the cash withdrawal value according to the terms of the bond. The cash withdrawal value, according to the terms of the bond,1 was $1,170. The petition pleaded the bond was surrendered and defendant paid plaintiff $1,170.
The answer pleaded the bond and the written election to surrender the bond and accept cash surrender value. Plaintiff replied that the written instrument of election was without consideration. Plaintiff got $1,170 by virtue of the instrument. Plaintiff also replied that when he signed the election he was sick and in a weakened condition, and believed the election was a receipt for the money. Plaintiff did not support the allegation by testimony. He testified he was in bad shape, needed the money, and had to take anything — a voluntary waiver of the misrepresentation with knowledge of the facts.
The petition pleaded plaintiff did not discover the fraud practiced on him until March, 1929. The answer pleaded the statute of limitations. The petition alleged plaintiff is a foreigner of Polish nationality, and did not understand or read the bond, or have it read to him. The allegation that plaintiff did not understand the bond indicated he did read it. However, plaintiff’s testimony indicated he was perfectly capable of taking care of his own business affairs, and'he did not testify he could not read the bond, or could not understand the bond, or needed anybody to explain to him the difference between the agent’s representation and the terms of the bond. Therefore, under the circumstances, with means of discovery in his own possession, in contemplation of law the falsity of the agent’s representation of what the bond would be was discovered when plaintiff had opportunity to read the bond.
The prayer of the petition asked for a money judgment. The prayer also asked that plaintiff be given relief against forfeiture, for reformation of the bond, and for general equitable relief. The sole ground stated in the petition for relief of any kind was the misrepresentation made to induce plaintiff to buy the bond.
Defendant demurred to plaintiff’s evidence, and the court took the demurrer under advisement. The abstract shows no ruling on the demurrer. The abstract shows the cause was submitted to the court, and the court made a general finding that plaintiff should take nothing. No trial error was committed or is complained of. How much of plaintiff’s evidence the court believed is not known, and an assignment of error that plaintiff was required to make his petition more definite and certain, with which requirement plaintiff complied, is representative of the merit of the appeal.
At some point in the proceeding there was injected into the case a contention that the amount plaintiff should have been paid was governed by the building and loan association law, and not by the contract. The contention is held to be without merit in the case of Brollier v. Bankers Mortgage Co., post, p. 298, this day decided.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff, as guardian of three minors, of the ages of twenty, eighteen and seven years, brought this action for the wrong ful death of their parents, alleged to have been caused by defects in a state highway. A general demurrer to the petition was overruled, and defendant has appealed.
The statute (R. S. 1931 Supp. 68-419) under which the action was brought, contains these provisos:
“Provided, That no such action shall be maintained unless within ninety days after the sustaining of such damage, written notice, stating the date, when, and place where such damage was sustained, the name and correct post-office address of the person sustaining such damage, and the character of the damage sustained, shall be served upon the director of highways, either in person or by registered mail at his office in Topeka, Shawnee county, Kansas: Provided further, That the action must be commenced within two years.”
The petition alleged the injury occurred September 1, 1930, as a result of which the mother of the minors died September 4 and the father November 5, 1930, and that the notice of claim for damages was given May 18, 1932, and because of a defect therein was corrected May 25, 1932. The action was filed August 12, 1932. Appellant contends that the petition shows on its face that it does not state a cause of action, in that the written notice required by the statute was not given within ninety days after the damage was sustained, but more than twenty months thereafter.
Apart from the provisos above set out the statute in question (R. S. 1931 Supp. 68-419) is much like the statute (R. S. 68-301) pertaining to the liability of counties and townships for defects in their highways (Collins v. State Highway Comm., 134 Kan. 278, 283, 5 P. 2d 1106). This has been construed frequently by this court. (See Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762, where the earlier cases are collected, and the later cases of McGuire v. Ellis County Comm’rs, 133 Kan. 225, 299 Pac. 945; Collins v. State Highway Comm., supra, p. 283; Mowrer v. Osage Township, 135 Kan. 278, 279,10 P. 2d 906; Arnold v. Coffey County Comm’rs, 135 Kan. 551, 11 P. 2d 729.) In brief, it authorizes one who, without contributing negligence on his part, has sustained damage by reason of a defect in the state highway to recover such damages from the state of Kansas, under certain circumstances, by an action brought against the state highway commission in the district court. It is a liability created by statute. The state, originally being immune from such liability, can be sued only for the cause and under the circumstances and within the time provided by statute. (See Payne v. State Highway Comm., 136 Kan. 561, 16 P. 2d 509, in addition to authorities above cited.) All of this is settled law in this state and not seriously controverted here. The point in controversy here is whether the provisos above set out are applicable to minors. Although the action was brought within two years after the alleged injury, the petition discloses on its face that the written notice of damages required by the statute to be given to the state highway commission, as a condition precedent to maintaining the action, was not given within time.
Our statute relating to cities (R. S. 12-105, revising § 7, ch. 122, Laws 1903, relating to cities of the first class, and § 1, ch. 143, Laws 1919, relating to cities of the second class) requires a similar notice before an action can be maintained against any city on account of injury to person or property. In Dechant v. City of Hays, 112 Kan. 729, 212 Pac. 682, a question arose as to whether this statute, as it pertains to cities of the second class, applies to minors. The question was thoroughly considered and the statute was held “to’ apply to minors as well as to adults.” In that case the minor was a boy nine years of age. It was further held that the statute created a condition precedent to the maintenance of such an action, and that the legislature had power to enact a statute making such a condition precedent. This holding has been repeatedly followed. We see no reason why the same rule should not apply here.
Appellees cite R. S. 60-307 to the effect that one under legal disability may bring an action within one year after such disability has been removed, and R. S. 77-201, 27th clause, which defines the phrase, “under legal disability,” to include persons within the age of minority. These are general provisions relating to the statute of limitations and are not applicable to a statute which creates a liability where none existed previously and which fixes the time within which the action must be brought (Harwood v. Railway Co., 101 Kan. 215,171 Pac. 354), or within which a notice of claim for damages must be given.
The judgment of the court below must be reversed, with directions to enter judgment for defendant. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, a minor, brought this action by next friends to recover damages for injuries sustained in a collision between a street car and a milk wagon which occurred at a street intersection in Kansas City on a wintry morning before daylight in January, 1931.
The defendant the Meyer Sanitary Milk Company was engaged in the distribution of milk. It owned teams and milk wagons and hired drivers to deliver milk throughout the city. With the knowledge and acquiescence of the milk company these drivers had a custom of hiring boys to accompany them on their routes to assist in the delivery of milk to customers. One of these drivers was Clinton Smith. The milk company furnished him with a team of mules and a wagon equipped to hold 600 bottles of milk. The wagon had a door on each side, and there were small panels of glass all around it, and a lantern was lit and hung inside. Smith’s milk route was in the northwest part of the city, where Twenty-sixth street, which runs north and south, intersects the street railway of defendant the Kansas City Public Service Company, which runs east and west adjacent to and parallel with New Jersey avenue.
Immediately north of this intersection Twenty-sixth street slopes toward the south. On approaching this intersection from the north the view of a street car coming from the east is somewhat shortened owing to the contour of the intervening ground.
The plaintiff, who was about thirteen years and four months old, had resided with his grandfather since babyhood a short distance from this intersection. For several months he had been employed by Clinton Smith to help in distributing milk. Smith paid him fifty cents for each trip. Sometimes Smith also employed Bernie Bray, a boy of sixteen years. The latter was present on the occasion of present concern. The two boys arose about midnight and arrived at the milk company’s plant about one o’clock. Plaintiff ■helped Clinton Smith hitch up-the mules and load milk cases into the wagon. Smith and the two boys then set out to deliver milk. The mules were well broken and taught to stop when the brake was set and to start when it was released. Smith delivered milk on the left side of the street and the two boys on the right. Coming south on Twenty-sixth street the team was stopped about twenty feet from the tracks of the street railway while Smith delivered milk on the east side of the street and the two boys on the west. Bernie Bray first returned to the wagon. About that time the brake was released and the mules started. Smith got in on the left side of the wagon, shutting the door with one hand and seizing the reins which hung overhead with the other. About the same time plaintiff reached the right side of the wagon and put one foot on the step as the team started to cross the railway track. About that time a street car which came from the east struck and up§et the milk wagon. Plaintiff fell under it and was severely and permanently injured.
Plaintiff’s petition recited the pertinent facts and charged both street-car company and milk company with negligence in various specified particulars.
The street-car company answered with a general denial and á plea of contributory negligence. It also alleged that plaintiff was engaged in a joint enterprise with the other occupants of the milk wagon and that the negligence of any of them was the negligence of all.
The milk company’s answer contained a general denial and alleged that Clinton Smith had no authority to employ plaintiff, and—
“That any injuries plaintiff may have received were because of his own fault and neglect; that he climbed on the outside of defendant’s wagon without the knowledge or consent of defendant, and assumed whatever risk might be incident to the position in which he was riding; that he could have alighted from the wagon in plenty of time to have avoided the injuries he complained of; that he loosened the brakes of the wagon which caused it to start before the driver was in place thereon, and thereby caused and directly contributed to any injuries he sustained.”
In plaintiff’s reply it was alleged—
“That if the driver had no specific authority to employ plaintiff, such employment was tacitly consented to by defendant milk company, and that the employment by said driver and others of various boys to assist in the delivery of milk for defendant was such a common practice that the milk company had actual or constructive knowledge and notice of such employment, and is estopped to deny the authority of its agent to employ plaintiff; that plaintiff had worked for Clinton Smith many times, and also for other drivers, all with full knowledge and consent of the milk company, and was so working at the time he was injured.”
Jury trial.
The main features of the evidence were as outlined above. Other testimony, more or less controverted, was given by various witnesses. Curtis Kuhn was permitted to testify over objection that he arrived at the scene of the accident a very few minutes after it happened and that he heard the motorman say, “I didn’t see the wagon until we hit.” The driver of the milk wagon testified that plaintiff himself had released the brakes, which started the mules before he (Smith) had entered the wagon.
[Counsel for the Milk Company] : “Was the wagon or the mules, or what part of it, was on the tracks when you got on it there, after they started up from this point forty feet back? A. The mules were on the tracks.
“Q. Now, when you got on it, what did you do, if.anything, by way of closing these doors? "A. I shut the door on the left side; that is, the one on the east side of the wagon.
“Q. Now at that time did you do anything by way of looking to see if there was a street car coming? A. At that time when I shut the door I saw the street car.
“Q. Did you say anything then? A. I said, ‘Look out! Here comes a street, car.’
“Q. Now, how far were you away from it at that time? A. ... I should judge about thirty, forty feet, something like that.
“Q. I believe you said that you caught it just as the mules were on the track? A. Yes.
“Q. Now, when you saw the brakes released, who was it released them? A. Jackie. (Plaintiff.)
“Q. How did he release them? A. With his foot.
“Q. Now, did you get across that track? A. We did not. We got knocked across. We were not quite across, no.”
“Cross-examination:
[Counsel for Plaintiff] : “Now, you stated that after you got in the left-hand side of the wagon and shut the door, then you saw the street car? A. Yes, sir.
“Q. How far away was the street car at that time? A. The street car was about forty or fifty feet away.
“Q. Could you see the motorman? A. Yes, sir.
“Q. Could you observe what he was doing? A. He was looking south.
“Q. Did you see anyone there in the front of the car besides the motorman? A. Yes.
“Q. Yes. Was he looking towards the other man? A. He was looking south on Twenty-sixth street. ^
“Q. How long did he continue to look that way? A. Well, about the time I saw him or just a little bit after that he saw us; he looked to the north.”
John D. Layton, who was the only passenger on the street car, testified that he was riding in the front vestibule and saw-the heads of the mules the instant they came within range of the street car’s headlight as they entered on the railway track; that the street car was then twenty to twenty-six feet' away; that instantaneously the air brakes of the street car were applied, and that the street car was stopped about four feet before it reached the west side of the pavement on Twenty-sixth street.
“Q. And as the car approached this intersection, what is the first thing you saw that attracted your attention — anything unusual? A. Well, I seen something in the beam of the headlight, that was the mules.
“Q. . . . Now, when you saw them was there anything that attracted your attention with reference to the car? A. Yes, the air.
“Q. What was it? A. The air.
“Q. The brakes went on? A. Yes.
“Q. . . . You were watching ahead on the track? A. Yes.
“Q. In your judgment, at about what — how was the car running, what rate of speed was it approaching this intersection?
“A. Well, I don’t know much about speed of street cars, but it was running at a moderate speed.”
Bernie Bray testified that he thought plaintiff released the wagon brake which started the mules. Nobody had hold of the reins. They were on a hook. ’As Smith got in he remarked that it was chilly and closed the door on the left.
“Q. Now, then, what is the next thing that you recall occurred? Just tell the court and jury. A. Well, Smith kind of yelled. He said, ‘Look out,’ and I looked over there, and there was a street car about ten feet off.
“Q. About ten feet off? A. Yes, sir; well, I don’t know for sure; I guess it was about ten feet, because I just got a glance at it and then it hit us.”
The jury returned a verdict for plaintiff for $15,000 against both defendants, and answered many special questions to the most significant of which space must be given:
“3. Was it dark at the time of the accident? A. Yes.
“4. How far distant in feet from the center of the paved portion of 26th street was the front end of the west-bound street car when the heads of the mules entered over the north rail of the westbound track? A. About twenty-five feet.
"7. How many feet east of the point of collision was the front end of the street car when Mr. Layton saw the team entering or on the north track? A. About twenty-five feet.
“8. Did the operator apply the air to the brakes the instant Mr. Layton first saw the team entering upon the north track? A. Yes.
“9. How many feet did the street car run west beyond the point of collision? A. About thirteen feet.
“10. Did the motorman turn on the air to set the brakes before the collision? A. Yes.
“11. If you answer the foregoing question ‘yes,’ how many feet did the car run from the instant the brakes were put on until it came to a stop? A. About thirty-eight feet.
“12. Immediately before the mules started to cross the north track, had the plaintiff taken any precautions or sought in any way to ascertain whether a street car was approaching from the east? A. No.
“13. If you answer the foregoing question ‘yes,’ state specifically what precautions he took before the mules started across the track. A. None.
“14. What was there at any time before the wagon was struck by the street car that prevented the plaintiff from stepping from the wagon on to the ground before getting on the north track? A. No knowledge of danger.
“15. At the time of the accident (a) was the plaintiff a bright, intelligent boy, (b) familiar with the Twenty-sixth street crossing, and (c) with the danger of crossing trolley tracks without ascertaining whether cars were approaching the crossing? A. (a) Yes. (b) Yes. (c) Yes.
“16. If you find a verdict against defendant Kansas City Public Service Company, state specifically each act of negligence on its part that caused or contributed to plaintiff’s injury. A. Inattention to duty on part of operator. Operator was not looking ahead. [Italicized words stricken out by trial court.]
“18. Did Jack Edward Lee for a long time prior to and on the 3d day of January, 1931, know that street cars passed and repassed frequently on said tracks across said intersection? A. Yes.
“19. Did Jack Edward Lee for a long time prior to and on the 3d day of January, 1931, know that owl cars passed and repassed hourly on said tracks across said intersection? A. No evidence to prove that he did.
“20. Was the team of mules hitched to the wagon of the defendant the Meyer Sanitary Milk Company gentle and trained to start and stop when the brake was released or set upon said milk wagon? A. Yes.
“22. Had Jack Edward Lee on many occasions prior to January 3, 1931, (a) feet said brakes and released the same on said milk wagon, and (b) knew that said team would stop and start when said brakes were set or released? A. (a) Yes, under driver’s supervision, (b) Yes.
“23. Was said team stopped on the morning of the 3d day of January, 1931, within ten or fifteen feet of the westbound track of the street-car company by the setting of the brakes thereon? A. Yes.
“29. Was the plaintiff, Jack Edward Lee, upon the step on the right-hand side of the milk wagon at the time the brake was released? A. Yes.
“30. What precautions, if any, do you find that Jack Edward Lee took for his own safety at any time prior to the time that the collision occurred? Answer fully. A. None.
“31. Did the driver of said milk wagon, Clinton Smith, see the street car of the defendant the Kansas City Public Service Company when it was forty or fifty feet from him? A. No.
“33. Was the Meyer Sanitary Milk Company guilty of any negligence which caused or contributed to the plaintiff’s injuries? A. Yes.
“34. If you answer question No. 33 ‘yes,’ then state fully of what such negligence consisted. A. Inattention of driver to full performance of duty. Driver did not have hold of lines and did not look out before going over the crossing. [Italicized words stricken out by the trial court.]
“37. Did the motorman say after the collision, ‘I did not see the wagon until we hit,’ in words or substance? A. No direct evidence.
“38. If you answer question No. 37 by ‘yes,’ could the milk wagon have gotten safely across the tracks if the motorman had seen it when it entered upon the tracks and used the means at his command to check the speed of the same? A. No direct evidence.
“39. Was there a custom of drivers of the Meyer Sanitary Milk Company enlisting the aid of young boys in making deliveries from the trucks and wagons? A. Yes.
“41. If you answer question numbered 39 ‘yes,’ was such custom known to the foreman or other officers of the Meyer Sanitary Milk Company? A. Yes.
“42. Was plaintiff upon the milk wagon with the full knowledge and consent of the driver? A. Yes.
“43. Did the mules start forward while plaintiff was in the act of boarding the wagon? A.-Yes.
“44. Who, if anyone, had hold of the lines? A. No one.
“45. How much time elapsed from the time plaintiff stepped on to the step of the wagon before the collision occurred? A. New seconds.”
The street-car company moved to set aside special findings 9, 11, 14, 16 and 19 as contrary to the evidence, contradictory to and inconsistent with each other, unsupported by the evidence, and inconsistent with the general verdict. The motion was sustained in part so far as it pertained to special finding 16. A similar ruling was made as to special finding 34. In all other respects the motion was overruled. Motions of both defendants for judgment on the special findings and for a new trial were overruled, and judgment for plaintiff was entered on the verdict against both defendants. Hence these appeals.
Considering first the errors urged by the street-car company, it will be noted that its negligence which contributed to plaintiff’s injury, as found by the jury, was that the operator of the street car was not looking ahead. (Special finding No. 16.) The effect of this finding was to exonerate the street-car company of all other allegations of negligence contained in plaintiff’s petition. (Brim v. Atchison, T. & S. F. Rly. Co., 136 Kan. 159, 12 P. 2d 715; Roberts v. St. Louis & S. F. Rly. Co., 136 Kan. 749, 759, 18 P. 2d 167.) The street-car company contends that there was no evidence to support this finding. It was based on the testimony of the driver of the milk wagon that he saw the street car when it was 30 or 40 feet away — 40 or 50 feet according to his cross examination — and that he observed the motorman looking south, toward the other man in the vestibule. That the motorman was looking south was the only fact testified to by the driver which the jury believed. (Finding 31.) However, as the jury did believe that the motorman was looking south — that he was not looking ahead at the moment the driver saw him — this court must accept that finding as true.
But how did that fact establish the negligence of the motorman and consequently of his employer, the street-car company? The juiy found that the street car was only 25 feet away when the heads of the mules came into view as they entered the railway track (findings 4 and 7), and that the air brake was applied instantly (finding 8) so that the street car was brought to a full stop in 38 feet. (Findings 11 and 9.) From these findings of fact another question intrudes: If the motorman had been looking ahead instead of toward the south, as the wagon driver testified and as the jury found, just what could he have done to have averted the collision that he did not do? If he had been looking ahead he would have applied the brakes, but he did apply them the instant the heads of the mules appeared within the range of the headlight. And he brought the street car to a stop1 within. 38 feet. Even the jury itself avoided an affirmative answer to the all-controlling question whether something the motorman failed or delayed to do would have checked the speed of the street car and thereby averted or minimized the collision. (Special Q. and A. 38.) It is, therefore, apparent that no negligence on the part of the street-car company was .established; the jury’s special findings acquitted it of negligence notwithstand ing their general verdict; and the judgment entered against it must be set aside.
Passing next to the errors urged on our attention by the defendant milk company: It first directs our attention to the pleadings. In the petition plaintiff alleged:
“Prior to the accident to the plaintiff he had done considerable work for the milk company and its agents by assisting in the delivery of its products. For many months prior to the accident to plaintiff a custom had existed among the drivers of the milk company, with its full knowledge and consent, or for such a length of time that the milk company had actual or constructive knowledge and notice thereof, of enlisting the aid of young boys in making deliveries to homes served with the company’s milk, cream and dairy products.”
The milk company’s 'answer traversed the allegations of the petition and alleged that plaintiff was injured through his own fault. It also alleged:
“That Clinton Smith never had authority to employ Jack Edward Lee, Smith being merely a driver of one of defendant’s wagons.”
At the trial plaintiff testified, on cross-examination, that he worked for the milk company during the summer of 1930 and continued to do so until the time he was hurt, on January 3, 1931. However, other evidence elicited the circumstances of plaintiff’s employment. Plaintiff was not on the milk company’s pay roll. It employed the drivers of the milk wagons, furnished them with teams, wagons and milk. The drivers employed the boys to assist them in delivering the milk and paid them 50 cents per trip for their services. The milk company knew of and acquiesced in this arrangement. It was pursuant to this arrangement that plaintiff assisted Smith in the delivery of milk; and, indeed, when Smith was on vacation- for two weeks, Smith’s superior, Thayer, who was foreman of the milk company and boss of the drivers, took Smith’s place in delivering milk, and plaintiff made the rounds with Thayer as he was accustomed to do with Smith.
In view of the pleadings and this evidence the defendant milk company contends that any liability it owed to plaintiff would be governed by the workmen’s compensation act and not under the general law of liability for negligence.
Touching this point it must be noted that no such suggestion was made in the pleadings. Defendant argues, however, that it is not necessary to plead matters of law; that it is sufficient for the pleadings and evidence to develop the facts, and the court will apply the pertinent law. But how does that rule apply here? The facts disclosed that plaintiff was thirteen years and four months old when this accident happened. The work in which he was engaged was performed in the nighttime. He arrived at the milk plant about 1 o’clock a. m. The milk plant was a kind of factory where machinery was used. He helped load the milk. Then he started out with the wagon driver to deliver milk about the city, and was so engaged when this accident occurred about 5 o’clock a. m., which was before daylight. (Finding 3.) The child-labor act, in part, reads:
“That no child under fourteen years of age shall be at any time employed, permitted or suffered to work in or in connection with' any factory, workshop, theater, mill, cannery, packing house, or operating elevators, . . (R. S. 38-601.)
' It may be inferred that the milk company’s business was operated under the workmen’s compensation act unless the proprietor had taken affirmative steps to exempt it from its provisions. Indeed, this is the inference defendant desires this court to draw from the silence of the record. But it is perfectly obvious that owing to plaintiff’s age he could not be lawfully employed in the nighttime around a milk distributing plant. Moreover, the compensation act defines a workman as a person who works for an employer under a contract of service or apprenticeship (R. S. 1931 Supp. 44-508 [i]), and no contract of service or apprenticeship existed between plaintiff and the milk company. It must therefore be held that the trial court correctly ruled out all consideration of 'the compensation act. But it would not necessarily follow, however, that the relation of master and servant could not exist between plaintiff and the milk company, although that relationship could not be governed by the compensation act. (Casteel v. Brick Co., 83 Kan. 533, 112 Pac. 145; Brown v. Railway Co., 104 Kan. 505, 507, 180 Pac. 211; Western Union Tel. Co. v. Ausbrooks, 148 Tenn. 615, 33 A. L. R. 330 and note. See, also, 14 A. L. R. 819; 49 A. L. R. 1436; 60 A. L. R. 848.)
In 28 R. C. L. 766 it is said:
“If a minor employee, who has been, engaged in the service of the employer in violation of the child-labor law, can show that an injury sustained by him was attributable to the fault of his employer, he is entitled to his action at law; but while there is authority apparently to the contrary, according to the prevailing view he is not entitled to claim compensation, where it appears that he was . . . under the statutory age.”
Just what was the status of plaintiff with respect to the defendant milk company? The company knew of his employment by the wagon driver. It was a general custom for the drivers to employ boys like plaintiff. It was a fair inference from the evidence that this custom was part of the company’s general plan for getting its milk distributed to its customers. The fact that plaintiff was paid by the driver and not by the milk company was not of controlling significance. Certainly plaintiff was not a trespasser on defendant’s milk wagon, nor a mere licensee. (45 C. J. 740, 788.) Under the working arrangement between plaintiff and the driver, which had the tacit consent and acquiescence of the milk company, plaintiff was an invitee to whom the milk company owed the common-law duty of reasonable care. (45 C. J. 808-810; id. 825-826.) A closely analogous case to the one at bar was Dyer v. McCorkle, 208 Cal. 216, where the defendant corporation was engaged through its employees in delivering milk in the city of Fresno. One of these employees used an electric truck. He instituted the practice of enlisting the aid of small boys in making deliveries to the homes served with milk by the defendant company, paying them therefor by small sums of money and gifts of candy. For some time prior to April 11, 1926, plaintiff, a twelve-year-old lad, had been accompanying this employee in his rounds, delivering milk in bottles to homes on one side of the street while the truck driver delivered them on the other. When the driver would return to the truck before plaintiff he would start it, and plaintiff would overtake it and jump on the running board, holding on by an upright bar while the truck was in motion. On one occasion, while jumping on the running board, plaintiff fell and was run over and injured. In the action for damages which followed it was not so clear as in the case at bar that the defendant was aware oí its truck driver’s custom of employing boys in this fashion, but the court held that it was a jury question. In affirming the judgment against the employer of the truck driver the California supreme court defined the status of plaintiff as that of an invitee, and held:
“In this action for damages for personal injuries suffered by plaintiff, a minor, as the result of a fall while endeavoring to jump to the running board of a milk truck of defendant corporation, if plaintiff, in attempting to board the truck, was there with the consent of defendant corporation or with the consent of its driver having authority, either express or implied, to grant the privilege, he was an invitee and was entitled to ordinary care at the hands of the driver, and the omission in this particular would be binding upon defendant corporation if, at the time of infliction of the injury, the driver was engaged in accomplishing an object in the line of the duties assigned to him by defendant corporation.” (Syl. ¶ 1.)
Among the pertinent cases cited in support of its judgment in the case just mentioned was Purtell v. Philadelphia Coal Co., 256 Ill. 110, 43 L. R. A., n. s., 193. In that case the appellant company had a coal yard in Chicago in which it employed fourteen workmen. For many years these employees had been accustomed to employ a water boy, and they paid him out of their own wages. Plaintiff, a boy under twelve years of age, had been thus employed for a short time when he was injured by a swinging boom. In affirming a judgment in his favor against the owner and operator of the coal yard, the court said:
“The owner of premises owes no duty to exercise care to keep his premises in a reasonably safe condition to a person who may be there as a mere licensee. (Pauckner v. Wakem, 231 Ill. 276, 14 L. R. A., n.s., 1118, 83 N. E. 202, and cases cited.) If, however, such person is there by the invitation, express or implied, of the owner, then such owner owes him a duty to exercise ordinary care to keep the premises in reasonably safe condition. When a person is upon premises by implied invitation, it means he is there for a purpose connected with the business in which the owner of the premises is engaged or which he permits to be carried on. (Plummer v. Dill, 156 Mass. 426, 32 Am. St. Rep. 463, 31 N. E. 128.) The evidence in this record shows plainly that for many years there has been a custom, which must have been well known to those in charge of appellant’s yard, for the car pushers and others, in their work of handling coal, to employ a boy as a water carrier, who kept them supplied with water, and who sometimes, at the request of such employees, was expected to go for beer. In Atkins v. Lackawanna Transp. Co., 182 Ill. 237, 54 N.E. 1004, this court held that where the owners of a vessel engaged in carrying merchandise permitted a boy on said vessel for the purpose of supplying its employees with drinking water, he being hired by such employees for that purpose, such owners must exercise reasonable care towards such boy while he was on the vessel. In Illinois C. R. Co. v. Hopkins, 200 Ill. 122, 65 N. E. 656, it was held that one going to a railroad depot to deliver meals to mail clerks on a train, in accordance with an agreement between her and such mail clerks, where such practice had been followed for years with the knowledge and consent of the railroad company, was not a mere licensee upon the depot platform, but must be regarded as there by the implied invitation of said railroad company.” (p. 114.)
Our own case of Swan v. Riverside Bathing Beach Co., 132 Kan. 61, 294 Pac. 902, was quite different except in respect to the duty owed to children who are invited to come about the property of a defendant. On that point this court ruled :
“Ordinary care with respect to children who have not reached the age where they are able to understand, appreciate and avoid danger, may include a duty to take precautions to protect them, which would not be necessary in case of adults or older children, but the owner or operator of a place to which children are invited is not ordinarily an insurer of their safety and can be held liable only when he has been guilty of negligence involving a breach of duty owed to such children.” (Syl. If 2.)
Counsel for the milk company cite Mayhew v. DeCoursey, 135 Kan. 184, 10 P. 2d 10. Without attempting nice distinctions, it should suffice to note that in that case the boy was riding on defendant’s truck in disobedience of the master’s orders, while in this case the boy was riding on the employer’s milk wagon pursuant to a long-standing custom acquiesced in by the milk company and he was actually engaged in furthering its business.
It is next contended that the uncontroverted evidence, as well as the jury’s special findings, particularly Nos. 15, 18 and 30, established plaintiff’s contributory negligence. Cases are cited which hold that boys of average intelligence, although not held to the standards of care for their own protection required of adults, are required to exercise such a degree of care as is reasonably to be expected of one of their years. (Bellamy v. Railways Co., 108 Kan. 708, 710, 196 Pac. 1104; notes in 11 L. R. A., n. s., 166-174; L. R. A. 1917F 172-187.) Appellant contends that a just application of this rule required the trial court, either on the demurrer to plaintiff’s evidence or on the motion for judgment on the special findings, to hold plaintiff guilty of contributory negligence. Of course the evidence did show that plaintiff took no precautions for his own safety, but the peculiar circumstances should not be overlooked. He testified that he had just reached the milk wagon as the mules started; the milk wagon was between him and the on-coming street car so that he could not see it; he had merely put his foot on the step, and was only in the act of getting inside when the collision occurred. He frankly admitted he knew of the danger of crossing without being assured that no street car was coming, and he always made it a point to look before he went across, if possible.
“Q. Before you would start on? A. If possible. Like if I was in a hurry or something, I would not pay no attention, because the driver is supposed to look out for that.”
In such a situation it cannot be declared as a matter of law that this thirteen-year-old boy was guilty of contributory negligence because he did not wait until after the milk wagon had crossed the railway track before he put his foot on the wagon step, or because in this instance he relied on the wagon driver to look out for the street car, as he was supposed to do. We think it was a jury question whether plaintiff’s attempt to board the wagon under the circumstances constituted contributory negligence. (Bellamy v. Railways Co., supra; note in 14 A. S. R. 590-596.)
It is also contended that error inhered in instruction No. 6 — too lengthy for reproduction here — in that it assumed that a custom existed among the milk company’s drivers of enlisting the aid of boys to deliver milk. Fairly read, the instruction merely summarized the allegations of plaintiff’s petition touching this custom and defendant’s knowledge of it and defendant’s notice and knowledge that plaintiff was so engaged by the milk-wagon driver, and the legal consequence which would attach thereto if the jury found the facts as alleged. The criticism of this instruction is illfounded, and the error assigned thereon cannot be sustained.
This court is aware of the gravity of this case to the milk company, but after a careful review of the record and a patient study of the legal questions raised by its counsel, we are compelled to hold that, no prejudicial error is made to appear, and the judgment against it must therefore be affirmed.
Reversed as to the Kansas City Public Service Company, and affirmed as to the Meyer Sanitary Milk Company. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for a sum due under a written contract signed by defendant for advertising in a newspaper published by plaintiff at Minneapolis, Minn. Plaintiff recovered, and defendant has appealed.
The evidence on plaintiff’s behalf, in addition to the written contract, consisted of the depositions of its officers and employees taken at Minneapolis. Appellant contends the court erred in permitting the depositions to be read in evidence for two. reasons: First, that the notary’s certificate to the depositions did not affirmatively show that he was not “a clerk or stenographer of either party, or attorney for either party.” It is true that the officer before whom depositions are taken must not be related to, or an attorney of, either party, or otherwise interested in the event of the action or proceeding, or clerk or stenographer of either party, or attorney of either party (R. S. 60-2825), but the section of the statute (R. S. 60-2842) specifying what shall be in the certificate of the officer before whom the depositions are taken does not require that it contain a statement that such officer was “not a clerk or stenographer of either party, or attorney for either party.” Hence ap pellant’s point is not well taken. Appellant’s second contention is that when the depositions were read there was no specific showing that the witnesses whose depositions had been taken were not residents of the county where the trial Was being conducted. There is no contention that they were residents of such county, o.r present ' therein, and the depositions show on their face that they are officers or employees of the printing company publishing a paper at Minneapolis, Minn. It was not error for the court to overrule this objection to the reading of the depositions.
In this case defendant did not file exceptions to the depositions in writing before the beginning of the trial, as required by R. S. 60-2846 and 60-2847. In addition to. that the parties had stipulated in writing that the depositions should be read. In view of these facts the objections made in the court below to the reading of the depositions were properly overruled.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action against the executors of an estate to recover on quantum meruit the reasonable value of services rendered the deceased in his lifetime. It was determined in the trial court upon the motion of the defendants for judgment in their favor upon the pleadings and the stipulated and admitted facts by the sustaining of said motion, and judgment was rendered for the defendants for costs, and plaintiff appeals.
The sole question involved was that of the bar of the one-year nonclaim statute, R. S. 1931 Supp. 22-702, and the one-year statute of limitations, R. S. 1931 Supp. "22-727.
The deceased, for whom the plaintiff claims to have rendered services at his request for nearly three years and for which he verbally promised compensation, died March 6, 1930. The defendants were duly and regularly appointed and qualified as executors on March 15, 1930. No formal claim was ever filed by the plaintiff in the probate court against the estate. This action was commenced in the district court of the county where the estate was being settled, on July 9, 1932, more than two years after the executors were appointed and qualified and had given notice of their appointment and qualification as such.
Appellant, however, relies upon the relation between this action and an intervening one between the same parties involving the recovery of compensation for the same services, in the form of specific real property, as per a verbal agreement before and during the time the services were being rendered by her, this intervening action having been commenced on October 24, 1930, less than eight months after the qualification of the executors. In this former action the'plaintiff failed to recover the real property prayed for, and judgment was rendered for defendants for costs. She appealed to this court, and here the judgment was affirmed, the decision being rendered June 4, 1932, and the case being entitled Laupheimer v. Buck, reported in 135 Kan. ,631, 11 P. 2d 721.
It is the theory of the appellant that the filing of the former ac tion within time fully satisfied the requirements of the nonclaim statutes and notified and informed the defendants of the plaintiff’s claim of a contract with the deceased and of her claim against the estate for compensation for the reasonable value of the services rendered by her. It is further contended that no further or additional notice was necessary for the same claim for compensation promised; that it is the same claim urged in both actions, only with different remedies, and that this action should on that account relate back to the filing of the former action.
The stipulation and pleadings show that the allegations of plaintiff’s petitions in the two actions are almost identical down to that of the promised compensation. In the former petition the alleged promise was certain real estate owned by the deceased, and in this action she claims to be entitled to recover for such services so rendered the fair and reasonable value of the same.
Appellant insists that by bringing the first action in time, she has fully complied with the requirements of R. S. 22-704, which is as follows:
“All actions commenced against such executor or administrator after the death of the deceased shall be considered demands legally exhibited against such estate from the time of serving the original process on such executor or administrator.”
She further claims that the bringing of such action will take the place of filing a claim with the probate court, referring to decisions to that effect. Appellant cites Clifton v. Meuser, 79 Kan. 655, 100 Pac. 645, where the claimant for similar services rendered the deceased, as in this case, served on the executor a notice of such claim only a few days before the expiration of the limitation and set the time for hearing on the last day within the limit. The hearing was continued so that the hearing was not had until the limitation had expired, and it was held that it was not necessary that the controversy be decided before the expiration of the period of limitation. Other cases are cited along the same line, but we do not think the propositions there determined exactly reach and control the situation here involved.
Appellant cites the case of Hoover v. Hoover’s Estate, 104 Kan. 635,180 Pac. 275, where the executor was very tardy about qualifying as such and beyond the proper time filed his own claim against the estate, and it was held that as he was the sole executor and, of course, knew of his own claim, the statute of limitations did not apply, as the only purpose of the notice of claim was to inform the executor. Appellant reasons from this ruling that the first action fully informed the executors in the case at bar of the plaintiff’s claim against the estate. But the difficulty is not limited to the information furnished by the first action; it is in the difference of the causes of action or the kind of claims. The distinction between such claims is well pointed out in the syllabus of Clifton v. Meuser, 88 Kan. 408, 129 Pac. 159.
“Where one who has received money from another contends that it was given him under an express contract, in consideration of services which he afterwards 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. See, also, Faler v. Culver, 94 Kan. 123, 146 Pac. 333; and Darnell v. Haines, 119 Kan. 633, 240 Pac. 583.)
In the case of A. T. & S. F. Rid. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093, an injured workman on the railroad commenced his action against the railroad to recover damages for personal injuries caused by the negligence of the company, and more than two years later aprended his petition to contain an additional cause of action concerning the same injury on account of the negligence of a fellow servant. The amendment was held to be a new cause of action and barred by the statute of limitations.
In Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189, a party commenced two suits upon a single cause of action, and it was held that where the one first determined stated no cause of action it will not arrest the running of the statute against an amendment made in either after the bar of the statute.
“In an action for a commission a real-estate broker may join a count for the reasonable value of his services with a count based upon an express contract to pay a stated commission.” (Berry v. Craig, 76 Kan. 345, syl., 91 Pac. 913.)
The claims of the plaintiff in the two actions here being considered are entirely different, although they might properly be included in the same petition, but recovery could only be obtained upon one. If both had been in the same petition and one of them was later amended, that cause would be barred regardless of the other being permitted to stand.
“When a petition fails to state a cause of action, an amendment which as serts a cause of action barred by the statute of limitations does not relate back to the first petition so as to deprive defendant of the defense of the statute.” (Powers v. Lumber Co., 75 Kan. 687, syl. ¶ 1, 90 Pac. 254.)
The bar relates to the commencement of the cause of action with each separately, and as this action was not commenced until long after the bar of the statute had run, the ruling of the trial court was correct in not permitting it to be related back to the time of the commencement of the former action.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
On April 17, 1930, the above action was tried in the lower court, and at the conclusion of the trial the judge rendered judgment evidenced by his minutes, which are as follows:
“April 17, 1930. Judgment for plaintiff for divorce on the grounds set forth in the petition. Divorce to become absolute after six months. All of lots 13-14-15, block 80, orig. town of Goodland, Kansas, awarded to plaintiff as her absolute property, free from any claim of the defendant. Plaintiff to pay all' taxes now due thereon. Defendant awarded all other property, in name of or owned by the defendant, awarded to him. Defendant adjudged to pay the mortgage due the Goodland Building and Loan Association, plaintiff to pay the amount received by government for her ward, Hugh Dean Irelan. Cost of this action to be paid from deposit in custody of clerk. Motion for new trial by defendant.”
The form of the journal entry was not settled and signed by the trial judge and filed until March 31, 1932, and in so far as the questions involved in this appeal are concerned, contains the following recitals:
"It is further ordered, considered, adjudged and decreed that the defend ant, Herman Baumgarten, is to pay the mortgages upon said real estate that exist at this time payable to the Goodland Building and Loan Association of Goodland, Kansas, leaving said real estate set apart to tifié plaintiff, Josie Baumgarten, and described as lots thirteen (13), fourteen (14), and fifteen (15), in block eighty (80), in the original town of Goodland, Sherman county, Kansas, free and clear of any encumbrance, and that of this amount 85,125.68 exists as against the last-described property, set over to and apart for the plaintiff. This amount is ordered and adjudged to be paid by the defendant to cause her property to be free and clear of encumbrances.
“It is further ordered, adjudged and decreed that the plaintiff, Josie Baumgarten, shall have as her own real property, free and clear of any encumbrances and of any right, title, interest or lien of this defendant all of said lots, thirteen, (13), fourteen, (14), and fifteen, (15), in block eighty, (80), in the original town of Goodland, Sherman county, Kansas.”
On April 9, 1932, plaintiff filed her praecipe for an execution and on the same day an execution was issued against the property of the defendant, the recital of the writ being that—
“Josie Baumgarten on the 17th day of April, 1930, in an action then pending in the district court of Sherman county, in the state of Kansas, recovered judgment against Herman Baumgarten for the sum of Fifty-one Hundred Twenty-five & 68/100 Dollars,” etc.
On April 13, 1932, an affidavit in garnishment was filed and a garnishment issued. On May 3, 1932, defendant filed his motion for an order restraining the clerk of the district court from issuing execution, and his motion for an order dissolving, quashing and' holding for naught the garnishment, the grounds of both motions being that there is no valid judgment upon which the same could be issued; that the purported judgment was entered in the absence of defendant and his counsel, and without notice as provided by law and the rules of this court; that the journal entry as filed does not set out the actual judgment rendered April 17, 1930, but constitutes a modification and change of said judgment; and that the court had no jurisdiction over either the subject matter or the judgment, since one term had passed and the period of six months had elapsed since the rendition of the judgment on April 17, 1930. On May 13, 1932, another affidavit in garnishment was filed and a similar motion was directed against it. All of said motions were denied, and from these rulings the defendant appeals.
The journal entry complained of was not promptly prepared, settled and filed as required by rules 32 and 33 of this court. Possibly this is due in part to the fact that the defendant appellant changed counsel. Prior to March 12, 1932, plaintiff’s counsel pre pared a journal entry and submitted it to opposing counsel, who wrote a letter setting out some objections to parts of the entry not material here, and concluding:
“You might have Judge Ham write us if that journal entry meets with his remembrance of what he ordered; and, if he will write us to that effect, our objection, of course, would have no effect.”
While most of the brief is taken up with a discussion of whether the journal entry as signed and filed expresses a modified and different judgment from that rendered by the court, and of whether it was a nunc pro tunc entry or not, an examination of the journal entry as filed and of the trial judge’s minutes shows that in so far as the question at issue is concerned, there is no change or modification further than that the journal entry specifically states the amount of the mortgage referred to in the judge’s notes.
When the motions complained of were argued, the trial judge said:
“After hearing all the evidence the court reached the conclusion that while probably the property, the real estate, lots 13, 14 and 15, block 80, original townsite of Goodland, clear, would not be of the value equal to the other property encumbered, yet that it would be better for both parties that this property be adjudged to be cleared by the defendant except for the taxes against it, and that the property be adjudged the property of the defendant without any obligation on the part of the plaintiff to help pay the mortgage indebtedness of the various mortgage liens.
“It was clearly the intention of the court to render the same judgment that is expressed in the journal entry. This court has no recollection that there were any figures made showing the exact amount that half the obligations would reach, or that that sum of §5,125 and some cents was reached, in the evidence, the evidence being as to the whole indebtedness, as to what it covered.”
The controlling question is whether such a judgment was rendered that execution and garnishment could be had thereon. An examination of the judge’s minutes of April 17, 1930, and of the journal entry filed March 31, 1932, fails to disclose any judgment in favor of plaintiff and against the defendant for the sum of $5,-125.68, or any other amount. It is ordered that the defendant pay the mortgages to the Goodland Building and Loan Association, leaving the real estate set apart to the plaintiff free and clear of any encumbrance, and that $5,125.68 exists as against the real estate set apart to plaintiff. The journal entry recites:
“This amount is ordered and adjudged to be paid by the defendant to cause her property to be free and clear of encumbrances.”
Had it been intended that the plaintiff have judgment against the defendant for any sum of money whatever, or had it been intended that if defendant did not pay the mortgage indebtedness she should then have judgment, words appropriate could easily have been used, and not having been so used, under ordinary rules of interpretation it must be held that no personal judgment was intended. There being no personal judgment in favor of plaintiff and against defendant, there is no basis either for the issuance of an execution against the property of the defendant under R. S. 60-3403 or for garnishment after execution either under R. S. 60-3491 or R. S. 60-34,107. While the facts'in the case are not the same, the language used in Scott v. Scott, 80 Kan. 489, 490, 103 Pac. 1005, is applicable here:
“The court is thus given absolute control of the matter. It may, within reasonable limits, dispose of the husband’s property as it sees fit. It may take from him anything he has and give it to the wife. And this necessarily implies that it may create a lien for her benefit upon any real estate he possesses. (Blankenship v. Blankenship, 19 Kan. 159.) Obviously it also has the power to free any particular tract from all lien, so as to enable the husband to pass a title, clear of any claim on the part of the wife. Probably by the use of language indicating such purpose it may give its decree awarding a fixed sum as alimony, the precise effect of an ordinary money judgment, collectible by execution and operating as a lien on the husband’s real estate. But the question of present moment is, What was the intention of the court in this case? Where alimony is ordered to be paid in installments, and nothing is said as to the manner of its collection, we think the fair inference is that the court intends the order to be enforced, not by lien and execution — a remedy manifestly ill adapted to the purpose, but by attachment for contempt if payment is not made — a remedy always available (14 Cyc. 799) and ordinarily efficacious.”
The orders of the court denying the appellant’s motion to restrain the issuance of execution and motions to dissolve garnishment proceedings are reversed and the cause is remanded with instructions to allow the motions. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by B. A. Elliott against the Bankers and Shippers Insurance Company of New York, and J. H. Elliott, to recover upon a policy insuring an automobile against fire and theft. Some time after the insurance was taken the automobile was stolen at Pittsburg, by persons unknown, driven about four miles from that place over an embankment, and there almost totally destroyed by fire. The insurance company refused to pay plaintiff for the loss and damage he had sustained, and the present action was brought and judgment rendered in his favor for $561. The defendant insurance company appeals.
In his petition plaintiff alleged that on January 27, 1928, he purchased a Hudson automobile from the Hanson Motor Company for $1,500 on the deferred-payment plan, and a payment of $600 was made at the time of purchase, leaving the amount of $1,011.36 to be paid, and a note was given covering the balance of the purchase price, which also included an insurance premium of $111.36; that the seller, the Hanson Motor Company, at the time of sale, objected to taking the title note of plaintiff as a part of the purchase price on the ground that he was being threatened with litigation growing out of some building projects, but stated that if the plaintiff’s brother, J. H. Elliott, would sign the note and security for the balance of the purchase price of the automobile and the insurance premium he would close the sale and deliver the automobile to plaintiff; that it was arranged with J. H. Elliott, who did sign the note and security with the understanding that the insurance paid for by the note when issued to the National Bond and Investment Company, would not only secure that company and the Hanson Motor Company, but also the interest of the plaintiff, B. A. Elliott, and any interest the said defendant, J. H. Elliott, might have in said automobile; that the Hanson Motor Company then delivered the note and security to the National Bond and Investment Company, and through an insurance broker agency the defendant insurance company issued and delivered a policy of insurance insuring the automobile as against loss by ñre and theft, but the policy issued by the defendant company insured the National Bond and Investment Company, the Hanson Motor Company, and J. H. Elliott, omitting the name and the interest of the purchasing plaintiff therefrom, and that he did not know that his name and interest were omitted until after the theft and destruction of the automobile by fire; that the Hanson Motor Company transferred the note and security to the National Bond and Investment Company without recourse, that company procured the insurance which was to be in force from the time of the sale of the automobile and that on the night of the 8th of January, 1929, the automobile was stolen from plaintiff by persons unknown, driven over a highway embankment about four miles Horn the city of Pittsburg, and there almost totally destroyed by .‘fire. It is stated that an arrangement was made by which the National Bond and Investment Company should finance transactions of this kind and obtain insurance for the purpose of protecting it as well as the vendors and purchasers of automobiles according to their respective interests where loss or damage occurred by fire or theft. When the loss occurred notice was given by the plaintiff, and the defendant insurance company employed the Insurance Adjustment Company of Kansas City, Mo., to investigate and adjust the loss. The adjuster came to Pittsburg and called on the plaintiff, he having obtained possession and control of the damaged automobile. The adjuster brought with him copies of the sales agreement, coverage on the car and the correspondence with respect to it. He states that he then learned that the car was owned by plaintiff and not by his brother, J. H. Elliott. ’■ ‘ He called the plaintiff and together they inspected the condition'of the car to determine how nearly it was destroyed, and then' interviewed" McGuire of the Hanson Motor ■Company, as to the amount he would pay for the salvage, and McGuire agreed that he would give $65 for it, and the adjuster, when asked by the plaintiff whether he wished to have a release from him of the car, said that he would come back later and attend to that.
The defendant denied that it had any contract with the plaintiff, that his name or interest was not mentioned in the policy, and also denied that it had any knowledge of the position of plaintiff as owner until after the loss occurred, and that the note furnished in the sale transaction was never signed by plaintiff, but only by his brother, J. H. Elliott, who was not the purchaser of the automobile. The defendant, however, admitted that after it was claimed that the automobile was destroyed by fire it paid the National Bond and Investment Company the sum of $379.26, the amount of the unpaid balance due on the note transferred to it, but it did not admit any liability under the policy to the plaintiff.
The reply of the plaintiff was a denial of the averments of the defendant and, also, that defendant is estopped to deny that the Hanson Motor Company was not its agent to collect insurance premiums because it had full knowledge of the facts with reference to plaintiff’s interest by and through its adjuster, while adjusting the loss and arranging for the application of the salvage for the protection of the defendant, and also that it is estopped from denying insurance to plaintiff under the contract for the reason that after the loss it requested the plaintiff by mail and telegram to take possession of the automobile and care for the same until the arrival of the adjuster, in order that the automobile might be salvaged.
The defendant demurred to plaintiff’s petition, which demurrer the court denied, and at the close of plaintiff’s evidence it also entered a demurrer thereto, which was overruled.
Error was 'assigned on instructions numbered three and four given by the court, and also on the admission of evidence, and the overruling of the motion for a new trial.
There is little, if any, dispute as to who was purchaser and owner of the automobile; no dispute that the plaintiff, B. A. Elliott, purchased the automobile at the price named, nor of the payment of $600 as the initial payment by plaintiff out of his own fund's at the time of purchase; no dispute that the seller did riot want to take the title note of plaintiff, and expressed a willingness’to take the note signed by the plaintiff’s brother for the deferred payments, which included the insurance on the ear then taken out. This title note furnished by the plaintiff was accepted by the seller and there is no dispute that J. H. Elliott was not the purchaser of the car or had any ownership in it. Although he was named as defendant, he did not contest plaintiff’s ownership or his right to the insurance. There is dispute in the evidence as to the action of the adjuster when he called on plaintiff, and as to what was said and done on the two visits he made in respect to the adjustment of the loss. It appears he went to Pittsburg at the request of the defendant to adjust the loss, that he called plaintiff, the owner of the car, by telephone to meet him at the garage of the Hanson Motor Company, the seller. It also appears without dispute that he had adjusted other losses for the defendant, and that he came there on a telegram from the defendant, which he exhibited to plaintiff as his authority. The damaged car had been brought by plaintiff from the place where it had been burned to that garage and together the plaintiff and adjuster made several trips to examine the condition of the car and the adjuster proposed that they interview a dealer named McGuire at the garage as to what salvage he would pay on the damaged car, and after some negotiations with the adjuster McGuire said he would give $65 for it. When the adjuster called on plaintiff he asked the latter if he had a Kansas automobile license and was told by plaintiff that he had, which he procured and presented to the adjuster, and after examination of the same he returned it to the plaintiff. The adjuster came back a second time and took from plaintiff a written statement or proof of loss and then left the car in his possession as the policy required, and in effect told plaintiff that he would desire the plaintiff to sign a release on the car later. The conflict in the evidence as to what transpired in the matter of the adjustment of the loss was settled by the jury and evidently they believed the testimony of the plaihtiff.
The insurance was paid for by plaintiff when the sale was made to him, it being included in the note that was given, which he furnished, and that with the accompanying papers was transmitted by the seller to the investment company. When it took out insurance in what is called the master policy for the protection of all interested, including itself, as well as the vendor and purchaser, it necessarily learned that insurance had been taken out on the automobile, through the seller — something he was authorized to do. According to the scheme the first step in the plan of insurance was taken by the Hanson Motor Company, and its authority to do so was recognized in the policy procured from the defendant by the investment company. The policy in effect provided that upon the execution of the note, the insurance applied and paid for became effective from that date, and that within thirty days thereafter the investment company should make out a certificate in quadruplicate and forward a copy of the same to the home office of the company, and if this was not done within the thirty days, that feature of the insurance would expire, and if the financing was not completed by the investment company the insurance would cease.
It was the intention of all the parties concerned to insure the purchaser of the car. By a mistake the brother of plaintiff was named as purchaser, but the seller, who solicited and took the insurance which was in force from the date of sale, knew that plaintiff was the purchaser, and not J. H. Elliott. The investment company, a Chicago concern, procured and had possession of the policy, and plaintiff did not see it or learn that he and his interest were not protected by the policy until after the loss. It would have been an appropriate remedy for plaintiff to have asked for a reformation of the instrument, but that is not always necessary. If the provisions of the policy interpreted in view of the extrinsic facts show the real intent of the parties, reformation is not essential. (Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 533.) In 26 C. J. 107 it is said:
“From the various cases involving the question of necessity for reformation it is possible to deduce the general rule that, if the policy when properly construed in.the light of extrinsic facts has the same meaning it would have if reformed, and sufficiently shows the real agreement of the parties, no reformation is necessary. . . . Reformation is not necessary where the insurer has waived or is estopped to rely upon a breach of a condition in the policy.”
See, also, Insurance Co. v. Saindon, 52 Kan. 486, 35 Pac. 15; Mercantile Co. v. Insurance Co., 101 Kan. 522,168 Pac. 323. Under these authorities and the evidence the contract of insurance may be treated as reformed and the plaintiff may be regarded as the purchaser and entitled to the insurance he had paid for to a party authorized to receive it. It appears that the premium is still retained.
If there was anything lacking in the support of this view it would be cured by the act of the adjuster, the representative of the defendant, who had been sent there to adjust the loss. The various steps which he took towards adjustment after learning of the omis sion of the plaintiff’s name in the contract, and the dealing with the plaintiff as the purchaser, would of itself bind the defendant. He called the plaintiff and together they made repeated inspections of the car to determine the extent of the damage and discussed with him the credit the defendant would be entitled to obtain from the salvage; then he negotiated with the garage man as to the amount he would pay for the damaged car. When he returned some weeks later he still recognized the plaintiff as a purchaser and owner of the automobile, and took from him another statement or claim of loss. While the adjuster denied his authority to settle the loss, that was his business, and he also admitted that he had adjusted and settled losses for the defendant prior to that time. Knowing of the omission in the insurance contract, he carried on negotiations with plaintiff as a purchaser, and the defendant in effect thereby recognized the claim of plaintiff that he was the purchaser and therefore entitled to the insurance which belonged to a purchaser in the scheme of insurance.
There is complaint of instructions of the court touching this and related subjects. Instructions numbers three and four follow:
“3. It is to determine these differences and disputes between, the plaintiff and defendant that you have been called into the jury box. If you should believe, from a preponderance of the evidence, in this cause, that the plaintiff was in fact the actual purchaser of the automobile in question from the Hanson Motor Sales Company; that he personally made the initial payment on the automobile; that his brother, J. H. Elliott, for plaintiff’s benefit, executed the note and chattel mortgage in question to the Hanson Motor Sales Company, representing the balance of the purchase price of said automobile, and that said note and mortgage represented and contained a finance .charge for the premium on the insurance contract in question; that the plaintiff personally applied to the Hanson Motor Sales Company for the insurance in question; that it was agreed that the insurance contract was to cover plaintiff’s interest in the automobile in question, as regards loss or damage by fire and theft; that plaintiff personally paid the insurance charges embraced by said note to the Hanson Motor Sales Company, who in turn remitted the same to the National Bond and Investment Company; that the automobile was, at the time claimed by plaintiff, damaged from fire and theft; that plaintiff reported said loss or damage to the National Bond and Investment Company, who in turn notified the defendant, and that the defendant thereupon sent its adjuster to Pittsburg, Kan., to investigate said loss or damage, and to confer with plaintiff with relation thereto, and that said agent conferred with plaintiff in regard to said loss or damage, and that pursuant to said conference, said agent entered into negotiations with plaintiff, with regard to the disposition of the salvage of said automobile; that it was agreed between plaintiff and said adjuster, and said adjuster, pursuant to said negotiations, entered into the control of said salvage and solicited an offer for said salvage, and that the salvage to said automobile was to or could be sold or disposed of for the benefit of the defendant. That then and under such circumstances, if found by you to exist, the defendant would be liable to plaintiff in this action for any loss or damage suffered in consequence of any theft of, or fire to his automobile, provided you should also believe from the evidence and circumstances in this case, that the adjuster of the defendant had either express or apparent or ostensible authority to have entered into negotiations with plaintiff, whereby it was agreed, if at all, that the defendant was to enter into the control of the salvage of said automobile, with power to dispose of the same, and provided still further, that either the defendant or its adjuster had full knowledge of the facts, that the agreement, if any, had been entered into between plaintiff and the seller of the automobile at the time of the sale thereof, whereby for the insurance charge, if any, collected, that the plaintiff’s interest in the automobile was to be insured against fire and theft, and provided you should also believe from the evidence, that said adjuster knew, at the time of negotiating, if at all, with plaintiff for permission to sell the salvage of said automobile, in the interest of the defendant, that the plaintiff was claiming that his interest in said automobile had been insured in the defendant, on account of said negotiations, if any, which were had with the seller and said insurance charge, if any, made by said seller. Of course, if you should believe from the evidence, that each and all of the foregoing facts exist, then the defendant would be deemed to have waived any lack of authority on the part of the seller to have made the insurance contract, if any, with the plaintiff in the first instance, and by having, if at all, entered into the control of said automobile, with the right to dispose of the salvage, the defendant would be deemed to be estopped from claiming that the seller had no authority to have made, if at all, an insurance contract covering defendant’s interest in said automobile. But, if you do not so find, your verdict should be for the defendant.
“4. You are instructed that generally an insurance adjuster is a representative of the company authorized to do any and every act necessary to bring about an adjustment of a loss. As to whether or not the insurance adjuster of the defendant, in this cause, had general or only limited authority as to the claim in controversy is for you to determine under all the facts, evidence and circumstances, in this cause. If his authority was general, then he had authority to deal with the plaintiff with regard to the adjustment of plaintiff’s claim. On the other hand, if the authority of such adjuster was limited to investigating the facts incident to the loss and claim, then he would not have had general authority. You are instructed, however, that if the adjuster of the defendant negotiated, if at all, with the plaintiff, with reference to taking control of and salvaging the automobile to the defendant’s benefit, and that said adjuster had apparent or ostensible authority to have acted in the premises, and that said adjuster failed, if at all, to have made known to plaintiff that his authority was limited, that then and under such circumstances, if found by you to exist, the defendant would be estopped from claiming that its adjuster was not an ordinary or general adjuster.”
The objections to the instructions are general in character mainly as being unwarranted by the evidence. Our reading of the instructions leads us to the conclusion that they are in conformity with the evidence and correctly presented the issues that were involved. The principal issue was whether when the insurance was applied for and the premium paid by plaintiff it was the intention and agreement of the parties that it should cover and protect the interest of the plaintiff. That he was the purchaser is not open to question. He paid the premium for the insurance out of his own funds, and the policy, when taken out subsequently by the investment company, was intended to cover not only its interest but also that of the purchaser and seller as well. We think the case was presented to the jury upon the correct theory that the evidence warranted the instructions and that the verdict is sufficiently supported by the evidence.
Objections to some rulings on the omission of testimony have been examined and found to be without merit.
Finding no error in the record, the judgment is affirmed. | [
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The opinion of the court was delivered, by
Harvey, J.:
This is an action to recover compensation for transporting pupils to school. The trial court sustained a demurrer to plaintiff’s petition, and he has appealed.
Briefly, it is alleged in the petition that plaintiff is a resident of school district No. 141, in Washington county, and has two children of school age; that at the school meeting in 1929, because of the small number of pupils in the district, it was voted to discontinue school for one year, and the board of directors designated school district No. 62 as the school for the pupils of district No. 141 who were of school age to attend. Plaintiff lives two miles from the schoolhouse in school district No. 62, and sent his children to that school in conformity with the regulation made in school district No. 141; that the defendant school district No. 141 failed to provide for transportation of plaintiff’s children from their home to the schoolhouse in school district No. 62, although plaintiff requested that it do so; that because of such failure plaintiff furnished transportation ; that the district board of school district No. 141 notified plaintiff that he would receive fifteen cents per day per pupil for transporting his children from their home to school district No. 62; that the sum was grossly inadequate to compensate plaintiff for such transportation and much less than would otherwise have been paid for the transportation of such pupils had defendant employed someone else for that purpose; that plaintiff refused to accept such inadequate sum as his compensation; that he transported such pupils to the school in district No. 62 for 151 days; that such transportation was reasonably worth the sum of $2.50 per round trip, or a total of $377.50; that he requested payment of this sum from defendant, but his request had been refused. Suit was brought for that amount. The pertinent portion of the statute (R. S. 72-701) reads:
“In any school district, if in the judgment of the district board, the county superintendent of public instruction concurring, the number of children in said district shall not be sufficient to warrant the maintenance of a school in said district, the district, at the annual meeting or at a special meeting duly called for this purpose, may make provision for sending the children of such district to the school or schools of some other district or districts and for the payment of the cost of tuition and the cost of transportation as herein provided. The district board shall provide for the transportation in a safe, comfortable and inclosed conveyance or conveyances, properly heated, of the pupils of said district who live two or more miles from the school to which they are sent; or in lieu of furnishing transportation, the district board may allow the parent or guardian of any pupil or pupils, as compensation for expenses, a sum not in excess of the amount which would otherwise be paid for the transportation of such pupils.”
It will be observed that the statute fixes no minimum sum to be paid, and by indirection only fixes a maximum in that it shall not be more than it would cost the district to employ some one to transport the pupils. The sum which plaintiff alleges defendant notified him he would be paid — fifteen cents per day for each pupil —is the minimum provided in another section of the statute (R. S. 72-601) to be allowed to the parent or guardian of any pupil living three or more (and less than five) miles from the school attended. That statute refers to a situation differing from that presented here, and we refer to it by way of comparison only.
Plaintiff appears to predicate his action to recover the amount claimed upon the theory that he was entitled to receive as much as it would cost the district to hire someone else to transport his pupils. We do not regard that as the correct meaning of the statute. It was within the discretion of the board of directors of school district No. 141 whether they employed someone to transport plaintiff’s pupils or to compensate him for doing it. In the absence of fraud or bad faith on the part of the members of the board of directors the amount allowed plaintiff for transporting his children to school was within their discretion. Appellant contends that he should be permitted to maintain the action even though there was an honest difference of judgment between him and the board of directors as to what would constitute reasonable compensation. We think that position is not tenable.
Appellant contends that he has in effect alleged unfairness and oppression by the board of directors by alleging that the sum offered to be paid — fifteen cents per day for each pupil — was grossly inadequate. In view of the fact that the legislature has fixed a minimum of fifteen cents per day under other circumstances where the transportation is to be from three to five miles, it cannot be said, as a matter of law, that an allowance of fifteen cents per day per pupil for transportation for two miles is so grossly inadequate as to be tantamount to fraud or bad faith. “The amount allowed was within the purpose and spirit of the law.” (School District v. Hill, 77 Kan. 786, 788, 90 Pac. 768.) If appellant cared to rely on fraud or bad faith he should have pleaded it specifically. In the absence of allegations of fraud or bad faith the directors of the defendant district are presumed to have acted in good faith. (Harkness v. School District, 103 Kan. 573, 175 Pac. 386.) Courts do not interfere with the discretion of school boards when they act in good faith and within the authority conferred upon them by law. (Park v. McKinney, 121 Kan. 41, 245 Pac. 41.)
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The opinion of the court was delivered by
Dawson, J.:
These actions, consolidated for the purposes of this intermediate appeal, were begun by plaintiffs to recover damages for the destruction of an elevator and two warehouses situated on and near defendant’s railway right of way in Osage City.
In case No. 31,014 plaintiffs, as owners of these properties, charged that their destruction was negligently caused by fire communicated by an engine operated by defendant. They also alleged that the fair value of the destroyed elevator was $4,500; that one of the warehouses similarly destroyed was of the value of $1,250 and that damages to the extent of $300 were likewise done to their second warehouse. Plaintiffs prayed judgment for $6,050 and for attorneys’ fees.
The railway company’s answer contained a general denial and also contained three paragraphs of matters which may be summarized thus:
In paragraph 3 it was pleaded that plaintiffs had no legal right to maintain the action because they were not the real parties in interest; that the elevator and warehouses were covered by various insurance policies aggregating $5,000; that the sum of these policies had been paid to plaintiffs, and that the insured properties did not have a value exceeding the amount of the insurance thus paid to plaintiffs.
In paragraph 4 defendant alleged that adjacent to the elevator and in possession of plaintiffs’ tenant there was a shed in which cobs, elevator dust and refuse in large quantities were permitted to remain, and these materials were subject to ignition by spontaneous combustion; that this shed was open at one end; that these conditions created a fire hazard susceptible to ignition by persons smoking pipes, cigars or cigarettes, and that the open condition of this shed furnished a harbor for tramps and other indigent persons having no business on the premises; and—
“That the fire which destroyed the elevator originated in said shed or addition so negligently maintained by said Anstaett, who was the tenant of the plaintiffs.”
In paragraph 5 defendant alleged that counsel representing plaintiffs in this action were never employed or retained by them, but were retained and employed by the several insurance companies which had carried the insurance on the properties destroyed by the fire, and that those companies could have no claim for attorneys’ fees against defendant.
In case No. 31,015 plaintiff, as tenant of the elevator and warehouses, among other matters not now important, alleged that he had grain and grain products stored in the elevator of the value of $8,631.97; that these were destroyed by the fire, except a salvage value of $348.10. He prayed judgment for $8,283.87 and for attorneys’ fees.
Defendant’s answer in case No. 31,015 contained a general denial; also three paragraphs of the same trend as those outlined above— that the grain and grain products were covered by insurance policies aggregating $7,000, which had been paid to plaintiff; that the amount so paid was full compensation for all loss sustained by plaintiff; and in consequence plaintiff was not the real party in interest and had no right to maintain the action. The other two paragraphs of the answer were substantially as summarized in case No. 31,014.
On motion of plaintiffs these paragraphs 3, 4 and 5 in each of the answers were stricken on the ground that neither of them nor all of them together would constitute a ground of defense to plaintiffs’ separate actions, and that the matter contained therein was incompetent, irrelevant, immaterial or prejudicial.
The railway company brings this ruling here for review. Meantime the trial court has stayed further proceedings.
1. Touching the defense that plaintiffs had been fully compensated for their loss by insurance and in consequence that they were not the real parties in interest, it would seem that this was a pertinent issue of fact which could not be got rid of by a motion to strike. Our code requires that actions must be prosecuted in the name of the real party in interest. (R. S. 60-401.) It has been held that one who has collected insurance on account of a loss by fire may sue the wrongdoer on his own behalf and that of the insurance company where his loss was more than the amount of the insurance. (Insurance Co. v. Cosgrove, 85 Kan. 296, 116 Pac. 819, 86 Kan. 374, 121 Pac. 488, 41 L. R. A., n. s., 719, and note; Clark v. Missouri Pac. Rld. Co., 134 Kan. 769, 8 P. 2d 381.) Although this court has not hitherto been called to rule squarely on the converse of this proposition, its existence was recognized in Railroad Co. v. Insurance Co., 59 Kan. 432, 53 Pac. 459, where it was said:
“When, the amount of the' loss does not exceed the amount of the insurance, so that satisfaction by the insurer fully compensates the assured, the right of action against the wrongdoer vests wholly in the insurer, and he may, indeed must, under our code, as the real and only party in interest, undertake the maintenance of the action for his reimbursement.” (p. 434.)
In Waters v. Schultz, 233 Mich. 143, it was held:
“Where an action was brought in the name of a party for the use and benefit of another, defendant’s motion to dismiss the case for want of the proper party in interest should have been granted, the provision of the statute requiring that the action shall be brought in the name of the real party in interest being mandatory.”
In Joy Floral Company et al. v. Norris, 34 Ga. App. 796, the action was by the owner of an automobile for damages against the owner of a truck which had collided with plaintiff’s car through the negligence of the operator of the truck. In the course of the trial it developed that prior to the commencement of the action plaintiff had received from an insurance company which had insured his automobile for loss caused by collision the full amount of damages he had sustained. It was then held that since plaintiff had no beneficial interest in the action it could not be maintained unless the petition were amended and the action brought for the use and benefit of the insurer. In the same case it was said:
“That evidence strongly tended to show that the owner of the automobile had been settled with in full by the insurance company, that he had received the full value of his property, and that he had no beneficial interest whatever in the pending suit; and it should have gone t,o the jury, with appropriate instructions from the court.” (Syi. IT 2.)
In 8 Couch on Insurance, § 2091, the divergent rules of practice in a score of jurisdictions governing cases like those at bar were summarized and fortified with footnotes and citations.
This court holds that the matter alleged in paragraph 3 of defendant’s answers was properly pleaded and not subject to plaintiff’s motion to strike, and the trial court’s ruling thereon was erroneous.
2. Concerning the facts alleged in paragraph 4 of the answer, counsel for defendant now interpret it to plead a defense of contributory negligence, but a critical examination of its text does not warrant that construction. There is an intimation that the fire might have been caused by trespassers, by smokers, by tramps, or by spontaneous combustion. But none of-these merely speculative intimations could properly be construed as a plea of contributory negligence. We, therefore, conclude that no error inheres in the ruling of the trial court striking paragraph 4 from the answer.
3. Passing next to the propriety of eliminating paragraph 5, in which defendant sought to raise a question of the authority of counsel to appear for plaintiffs in these actions, the pertinent statute reads:
“The court may, on motion, for either party, and on the showing of reasonable grounds therefor, require the attorney for the’ adverse party, or for any one of several adverse parties, to produce or prove, by his own oath or otherwise, the authority under which he appears, and, until he does so, may stay all proceedings by him on behalf of the parties for whom he assumes to appear.” ' (R. S. 7-107.)
A critical examination of the statute just quoted indicates that the challenge of authority of an attorney appearing in a lawsuit shall not be captiously made. The fact of his appearance is prima facie evidence of his authority. (Whipple v. U. P. Rly. Co., 28 Kan. 474, 481.) Before he can be called on to produce or prove his authority the challenger must make a reasonable showing to justify this requirement. The statute also provides that when the question of an attorney’s authority is raised, on a proper showing of reasonable .grounds, the court may stay all proceedings by him on behalf of the parties for whom he assumes to appear until his authority is produced or proved by his own oath or otherwise. It therefore appears that the matter pleaded in paragraph 5 of the answers did not belong there. The pleadings in an action for damages are for the purpose of formulating issues of fact to be tried by a jury; and certainly the statute (R. S. 7-107) does not contemplate that the question of an attorney’s authority to represent his client shall be a jury question. Indeed, the statute provides for a stay of all proceedings (which would include a stay of the jury trial itself) until the matter of the attorney’s authority is established.
This statute was briefly but pointedly construed in Wisecarver v. Wells, 108 Kan. 842, 847, 197 Pac. 219, where the late Mr. Justice Mason, speaking for-the court, said:
“Complaint is also made of the refusal of the court to admit evidence that Rachael D. Wilson had stated that she had not authorized the bringing of the proceeding. The evidence was properly rejected. If it had been desired to challenge the authority of the attorney conducting the plaintiffs’ side of the case to represent her therein the statute provides a direct method. (Gen. Stat. 1915, § 483.) Declarations on the subject made by her out. of court had no bearing on the issues on trial.” (p. 847.)
It seems clear that paragraph 5 was properly stricken from defendant’s answers.
It follows that these causes should be remanded to the district court with instructions to reinstate the third paragraphs of defendant’s answers, and for further proceedings consistent herewith.
Reversed in part and affirmed in part. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to reform and then to recover on fire insurance policies. Judgment was for defendant, and plaintiff appeals;
Plaintiff was engaged in the general mercantile business, and his stock of merchandise was contained in three buildings: a main one-story building, a brick and tile warehouse a short distance north of the main building, and a metal warehouse just north of the first warehouse. The buildings were connected with concrete walks, and were all used together in the conduct of the business. The stock of flour and feed was kept in the brick and tile warehouse. In the ordinary course of business, merchandise was received at the metal warehouse and was kept there until necessary to break packages and to replenish stock in the main building. Some commodities, such as salt, did not reach the main building. The business belonged originally to Ross Gault. In 1925 he sold to George C. Dietrich and Robert S. Gault. Ross Gault and Robert S. Gault were brothers, and Dietrich and Robert S. Gault were brothers-in-law. In 1928 Robert S. Gault sold his interest to his partner Dietrich, the present plaintiff, who has since been sole owner.
Robert S. Gault was agent for the insurance company, and as such agent negotiated insurance for his brother, then for the firm of which he was a member, and then for Dietrich. Gault furnished data, and policies were written at the home office of the company. Policies were sent to Gault, who countersigned and delivered them. Each policy described the subject of insurance in the same way, and was for a period of one year. As policies expired they were renewed.
When the partnership became owner, the amount of the insurance on merchandise was $6,000, and on fixtures $250. Subsequently an inventory was taken, and it was' found the merchandise amounted to about $12,000. The amount of insurance was not considered sufficient to afford proper protection, and a second policy was issued for $4,000. The two policies were renewed as they expired, the last renewal being made by the company on instruction by the agent to renew “as is.”
In 1930 the metal warehouse at the north end of the line of buildings was destroyed by fire, and plaintiff suffered loss to the amount of $2,311.24. The description contained in the policies then in force, so far as material, follows:
“On stock of merchandise consisting chiefly of dry goods, notions, shoes, ready-to-wear, merchandise, meats, groceries, produce and flour, and such other merchandise as is usually kept for sale in general merchandise stores; . . . all only while contained in the one-story gravel roof brick and tile and frame building, occupied as a general merchandise store, situated north side of Central street, lots 15, 16, block 9, risk 29, city (town) of Richmond, state of Kansas. This item shall also cover said merchandise within one hundred (100) feet of the above described building while on sidewalks, streets, alleys, yards, detached platforms, and in or on vehicles or railway cars; also on said merchandise while on platforms in contact with above described building; . . .”
The building here described was the main store building. The building which was burned was on lot 15. The insurance company declined to pay, on the ground the merchandise in the building which burned was not insured. Plaintiff’s idea was that he had not taken insurance merely on that part of his stock of merchandise which was contained in the main store, but on his stock of merchan dise. The agent of the company had the same notion. Hence the prayer for reformation to make the policies express the intention of the parties.
Clear manifestation of intention by both the agent and Dietrich that the insurance should cover all the property occurred when the amount of insurance was increased. After that the renewal policies were countersigned and delivered by the agent and were accepted by the insured as covering the entire stock of merchandise.
When the additional insurance was taken out the entire stock was inventoried, and not simply the stock in the main store. The insurance was only half the amount of the inventory, and plaintiff testified as follows:
“Q. Did you have some conversation with the agent, Robert S. Gault, of that company, as to what the policy covered? A. I don’t remember the exact conversation. It was to this extent, however, that we had entered business on considerable borrowed money; that the man who had loaned us all that money had been kind enough not to ask for any money mortgage on the property. That left me feeling in justice to him we should carry the property reasonably insured. The loan to us was on the stock and fixtures, and that is what we were carrying the insurance on.
“Q. Did you tell him, as agent for the insurance company, to write an additional policy upon the property? A. Yes, sir. Our invoice the first of February showed stock in the neighborhood of $11,500 or $12,000, and the estimated value of the fixtures alone was around twelve to fourteen hundred dollars. I didn’t feel that the insurance of $6,250 was ample to protect us in case of loss, or to protect our creditors, so I asked Mr. Gault to increase the insurance $4,000.
“Q. Upon what property? A. Upon our property.
“Q. Where was it located? A. On those two lots you have just mentioned.
“Q. I will ask you, Mr. Dietrich, whether at the time when they were rewritten it was your intention and belief that those policies covered all of the merchandise located in the three buildings on those lots? A. Yes, sir.”
The agent testified as follows:
“About a year after we bought the business from my brother, the amount of the insurance was increased.
“Q. What happened that led to its increase? A. When the stock was invoiced, we found we had, according to the invoice, right around $12,000 in round numbers in stock, besides furniture and fixtures.
“The inventory had been made at that time, and covered all the merchandise and fixtures on those two lots, some of which was then in the metal building and some of it in the tile building.
“Q. Did Mr. Dietrich tell you anything about what he desired concerning an increase of insurance? A. Yes, sir.
“Q. What did he say? A. He said he-wanted to carry insurance to cover everything so in case of fire we would be protected and the creditors would be protected.
“Q. Did he say what the everything was? A. In all our dealings everything covered the whole invoice.
“Q. When you talked with Mr. Dietrich concerning that increase, and with the gentleman who was the state agent, was it your intention to have the increase of insurance cover all of the property upon these lots, wherever located? A. Yes, sir.”
The agent testified concerning subsequent policies as follows:
“Q. I will aslc you, Mr. Gault, whether you believed at all these times that those policies covered all of that merchandise in the three buildings-upon that lot? A. Yes, sir.
“Q. Was it your intention that it should so cover? A. Yes, sir.”
The agent testified concerning the policies sued on as follows:
“Q. Now, Mr. Gault, I will ask you whether [when] you signed those policies as the agent of your company, it was your intention that the insurance evidenced by those policies should and did cover all of the merchandise in that whole establishment? A. Yes, sir.
“Q. Did you believe that it did? A. Yes, sir.”
Both the agent and the insured testified they read the policies and were familiar with the provisions of the policies. They were cross-examined and cross-examined, and testified and testified, by one form of expression and another, to the effect they knew exactly what the terms of the policies were. The agent testified as follows:
“Q. You knew exactly what they contained? A. The way I interpreted it; yes, sir.
"Q. You mean when you say you thought that the policy covered all of the property, merchandise, wherever kept, that is the way you interpreted the policy as written? A. Yes, sir.”
Plaintiff testified as follows:
“Q. That has been your contention all along, that this policy as it stood really covered the property that burned? A. That was my understanding.”
The main store did not burn. The loss on merchandise which did burn amounted to 23.11 per cent of the total amount of insurance carried. It would be a strange thing if, under the circumstances narrated, Dietrich and Gault as owners, and Gault as insurance agent, intended to insure only some of the stock of merchandise, and that subsequently Dietrich as owner and Gault as insurance agent intended to insure only some of the stock of merchandise. While the court did not specifically find the intention was to insure all the merchandise, the court did not find and could not find the intention was to insure only some of the merchandise, and the court rested its decision on conclusiveness of words in the policy which were understood by both insurer and insured. The court’s conclusions of fact and conclusions of law follow:
“Conclusions of Fact.
“The policies upon which the suits are brought were issued in March, 1930, and after they were delivered to the plaintiff, Dietrich, he inspected them and was familiar with the contents and provisions thereof, as he had been of previous policies.
“There was not any misunderstanding on Dietrich’s part as to the wording of the policies.
“The plaintiff, Dietrich, and Robert S. Gault, the local agent of the defendant, were of the opinion that the policies of insurance as, written covered any loss to the goods, wares and merchandise going to make up the plaintiff’s stock in trade, whether they were located in the main building or the other buildings.”
“Conclusions of Law.
“1. The policies of insurance in this case do not cover the loss of any of the goods, wares or merchandise of the insured other than while they are contained in the building described in the policies except under special contingencies which do not exist in this case.
“2. The plaintiff, Dietrich, is not entitled to have the policies of insurance reformed so as to make the defendant company liable for loss to goods, wares or merchandise contained in the building' other than the main building, in the absence of fraud or misunderstanding as to the contents of the policies or misrepresentation of fact, none of which exist in this case.
“3. The fact that the plaintiff and the company’s local agent, Robert S. Gault, were of the opinion that the policies covered the contents of the buildings other than the main building, does not entitle the plaintiff to either reformation of the policies or to any recovery thereunder.”
It is quite likely the court rested its decision on a statement made in the opinion of this court in the case of Brenn v. Insurance Co., 103 Kan. 517, 175 Pac. 383. The brief for defendant cites no authority for the decision of the district court except the Brenn case and the federal case cited in the opinion in the Brenn case.
The Brenn case was this: The insurance company was a mutual company, and by statute the by-laws of the company were part of every policy issued. The policy covered horses, mules, and colts. Brenn had eleven head when the policy was issued, and eighteen head when loss occurred. The policy was for $500, and amount of risk on a single animal was not stated. The insurance agent told Brenn before the policy was issued that the company would pay the full value of any animal he lost. He lost one animal, and sued for its full value, $130. The district court gave judgment for that amount. As interpreted by this court, the by-laws meant all Brenn could recover was one-eighteenth of $500, or $27.77.
The basis of the district court’s judgment in the Brenn case did not appear in the record, and this court was obliged to speculate concerning what the district court did. Although reformation was not prayed for, specific prayer for reformation was not necessary, and the district court might have considered the policy as reformed to make the policy meet the agent’s representation concerning what the company would pay. In discussing the subject of reformation, this court said:
“By the weight of authority an insurance contract may be reformed for a mistake of the applicant and the soliciting agent, although the latter had no authority to issue a policy or determine its contents. (14 R. C. L. S03, citing note, 11 L. R. A., n. s., 357.) Here, however, the facts indicate, not that the company’s agent represented that matter was to be inserted in the policy which was omitted, but that, knowing the actual contents of the policy, he undertook to tell its legal effect, and stated it incorrectly through an error of judgment. Such a situation has been held not to authorize a reformation on the ground of mutual mistake. (Travelers’ Ins. Co. v. Henderson, 69 Fed. 762.)” (Brenn v. Insurance Co., 103 Kan. 517, 520, 175 Pac. 383.)
It will be observed the court neither approved nor disapproved the federal decision. Attention was merely called to the fact there was such a decision. The court then proceeded to make its own decision, leaving no room for doubt about what the decision was:
“But a consideration which disposes of this feature of the case is the fact that the statute under which the defendant is organized includes this provision:
“ ‘Every policy issued shall have attached thereto a printed copy of the note and application, also a printed copy of the by-laws and regulations of the company, which shall be signed by the president and secretary of the company and the insured, and shall become a part of the contract between the insurer and the insured.’ (Gen. Stat. 1915, § 5319.)
“The defendant is a purely mutual company. The persons insured form the membership of the corporation. (Gen. Stat. 1915, § 5310.) The legislative intent clearly was that the by-laws should be made binding on the members and should constitute a part of every contract of insurance made, and that they should affect the measure of liability where they related to that subject. This purpose is not to be defeated by the expression by a soliciting agent of a mistaken opinion as to the force of a by-law. It is the meaning of the by-law itself, and not the agent’s conception of it, that is to control.” (p. 520.)
If the law were otherwise, reformation of a policy to meet the opinion of an agent would reform the by-laws themselves, which, as we used to say in mathematics, would be absurd. The result is, there is no analogy between the Brenn case and this one. In this case, there could be reformation of the policy to cover all of a stock of goods instead of part of it.
,The court found as a fact, from the undisputed evidence, there was no misunderstanding on Dietrich’s part as to the wording of the policies. The second conclusion of law, omitting fraud and misrepresentation which are not involved, is that Dietrich is not entitled to reformation, in the absence of misunderstanding of the “contents of the policies.” Assuming the conclusion of law is a conclusion from the facts found, “wording” and “contents” of the policies are the same thing. So understood, the second conclusion of law is erroneous. Section 1585 of Williston on Contracts (vol. 3, p. 2803) reads:
“Where a written, instrument fails to express the intention of the parties because of a mutual mistake as to the construction or legal effect of the words of the writing, though there is no misapprehension as to what words have been used, reformation is allowed. It is not necessary, moreover, in order to establish a mistake which may be reformed, that it should be shown that particular words were misunderstood. ‘It is sufficient that the parties had agreed to accomplish a particular object by the instrument to be executed, and that the instrument as executed is insufficient to effectuate their intention.’ But in a few jurisdictions, if the parties knew the words in the instrument and intended to use those words, their misapprehension of the legal effect of the language will not be ground for reformation.”
The rule approved by the text is supported by a very long list of authorities.
The rule stated by Williston was adopted by the American Law Institute:
“Except as stated in §§ 506 and 509-511, where both parties have an identical intention as to the' terms to be embodied in a proposed written conveyance, assignment, contract or discharge, and a writing executed by them is materially at variance with that intention, either party can get a decree that the writing shall be reformed so that it shall express the intention of the parties, if innocent third persons will not be unfairly affected thereby.
“5. A contracts with B to guarantee certain debts due by C to B. The words of the contract are exactly as intended by both parties, but both understand that the legal effect of the words is to impose only a guarantee of collectibility. The writing will be reformed to express that understanding.” (Restatement, Contracts, § 504, and illustration 5.)
An illustration of application of the rule may be found in the case of Maher v. Hibernia Insurance Co., 67 N. Y. 283 (1876). In that case an insurance policy was issued insuring a building “occupied as a residence.” The phrase “occupied as a residence” constituted a warranty. In fact, the front room was occupied as a grocery. The matter was called to the attention of the insurance agent, who said it made no difference, the policy was all right as it was. There was a loss, and reformation of the policy was prayed for. In the opinion it was said:
“They meant to insure the building which was burned; they meant to correctly describe it; they used words which they thought did correctly describe it. It turns out that in this they were honestly mistaken. It is in the power of a court of equity, on being satisfied of that, to so reform and rewrite the' contract, as that it shall state truly what the parties in fact agreed to and what they intended to write out as their agreement. It is true that they knew what words were used in the instrument. Doubtless they knew the ordinary meaning of the words. The evidence, however, authorized a finding that they mistakenly supposed that those words, when used in a contract for insurance, were proper terms in which to describe the building, intended by the plaintiff and accepted by the agent of the defendant, as the subject of that contract. It resulted, therefore, from that mistake, that the contract failed to express the fact as agreed upon between them.” (p. 291.)
Illustrations might be multiplied. The latest federal decision applying the rule is that of' Shell Petroleum Corporation v. Corn, 54 F. 2d 766 (C. C. A. 10th Circuit). In the opinion by McDermott, circuit judge, the cases decided by the supreme court of the United States and other federal courts are reviewed.
In this instance the court was convinced by the evidence and consequently found it was the opinion of both Dietrich and the insurance agent that the policies of insurance as written covered any loss to goods constituting plaintiff’s stock in trade, whether located in the main store or in one of the warehouses. These opinions were not detached states of mind. They were the settled judgments of the insured and the insurance agent with respect to what was accomplished in a transaction relating to insurance of a stock of goods. The parties were mistaken. It seems the mistake originated before Gault became a partner, in a policy which he did not write, and the mistake was simply perpetuated throughout the series of policies. The understanding of the parties at the time the amount of insurance was increased was definitely established and, as indicated, the misdescription was brought into the policies sued on by the agent’s direction to the company to renew “as is.” While the words of the policies as units of expression were known, they did not express what the parties desired to express by using the words, and in such cases it is the province and duty of a court of equity to reform the policies by employing words which do express the true intention.
Defendant says that if plaintiff can prevail, the description in a policy limiting coverage to a particular building amounts to nothing. It ought not to amount to anything when the descriptive words misdescribe. In the case of Griswold v. Hazard, 141 U. S. 260, the words of a bond did not express the intention of the parties to the instrument. In the opinion the court said:
“There was no mistake as to the mere words of the bond; for it was drawn by one of Hazard’s attorneys, and was read by Griswold before signing it. But, according to the great weight of the evidence, there was a mistake, on both sides, as to the legal import of the terms employed to give effect to the mutual agreement. ... A court of equity ought not to allow -that mistake, satisfactorily established and thus caused, to stand uncorrected, and thereby subject a surety to liability he did not intend to assume, and which, according to the decided preponderance of the evidence, there was at the time no purpose to impose upon him.” (pp. 283, 284.)
By the same token a mistake satisfactorily established ought not to stand uncorrected, and thereby permit an insurance company to escape liability on a policy which it wrote pursuant to misdirection of its agent, acting under an opinion, shared by the policyholder, that the policy did create.liability.
The rate was higher on goods in the building which burned than on goods in the main building, and plaintiff was charged and paid the lower rate. Gault had a rate book, but apparently did not make careful use of it. Collusion, bad faith, or other improper motive, was not charged or proved or found, and the matter of rate does not prevent reformation. The same thing occurred in the case of Hardware Co. v. Insurance Co., 97 Kan. 127, 154 Pac. 229. The syllabus reads:
“Recovery can be had on a fire insurance policy covering merchandise contained in different buildings situated on two adjoining lots, although the property insured is described as being situated on one' of the lots, where the evidence shows that the insurance agent and the owner intended to insure the property while in the buildings on either or both of the lots.”
The matter of rate may be adjusted by the judgment.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for plaintiff.
Harvey, J., not sitting.
Hutchison, J., dissenting. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action in ejectment and to set aside a tax deed on part of a lot in the city of Wallace, in Wallace county, Kansas, where the defendants are and have been in possession of the lot for more than twelve years, holding title thereto under a tax deed which has been of record for all of that time. The answer of the defendants was a general denial. Before filing the answer, however, the defendants moved to strike from the petition certain paragraphs, and after filing the answer they moved for judgment on the pleadings. These motions were overruled. After plaintiff had introduced her testimony and rested defendants demurred to the evidence, and when the demurrer was overruled they stood thereon and judgment was rendered for plaintiff, finding the tax deed to be void on its face in two particulars. From this judgment the defendants appeal.
Both parties agree that the sole question here involved is whether the tax deed is void upon its face.
Appellants first cite R. S. 79-2503 and 79-2505 and a number of Kansas decisions prescribing and holding that an action to defeat and avoid a conveyance of land for taxes is barred if not commenced within five years from the time of the recording of the tax deed. These statutes and decisions have reference to defects, irregularities and omissions in the tax proceedings which may render the tax deed voidable, but they do not apply or control where the tax deed is void on its face. Actions to set aside tax deeds as void on their face are' not barred by the five-year statute of limitations. (Richards v. Thompson, 43 Kan. 209, 23 Pac. 106, and Doudna v. Harlan, 45 Kan. 484, 25 Pac. 883.)
The first feature of the tax deed which the trial court held would render it void on its face was that the resolution authorizing the county treasurer to bid in the property for the county at the tax sale had not been passed or adopted by the board of county commissioners until more than a month after the county treasurer had bid in this property, as shown on the face of the deed in the following language:
. . and whereas the treasurer of said county did, on the third day of September, a. d. 1912, pursuant to notice given as required by law, at a public sale of real property for delinquent taxes, held at his office in the county seat of said county, and by virtue of authority in him vested and in pursuance of a resolution of the board of county commissioners on the 7th day of October, 1912, entered at page 112, volume 3 of the record of said board adopting the provisions of chapter 162, Session Laws of 1891, bid off in the name of said county separately each of the said several parcels, tracts and lots above described. . . .”
Appellants urge that the date, October 7, 1912, is a mere clerical error, and the liberal rule of construction applied to deeds of record more than five years should prevail as was held under similar circumstances in Hoffman v. Woodward, 86 Kan. 81, 119 Pac. 712. That was a case where the tax deed was based upon a compromise of delinquent taxes and where an intervening period of three years between the date of sale and the assignment of the tax sale certificate was necessary, and while the two dates given in the deed being Sep tember, 1896, and January 3, 1899, showed an intervening period of less than three years, yet the deed contained the positive recital that “three years had expired from the date of said sale.” The court applied the liberal rule of construction, being confronted with this inconsistency and ambiguity, and gave preference to the positive statement of the intervening period being full three years, even to the extent of regarding the last date given as being a clerical error. In the case at bar we have no positive statement. We have only the dates and nothing else to aid or strengthen an intention to use a different date. The absurd date is all we have. It cannot be a ratification of what the county treasurer had already done. To have bid in the lot for the county without such an order would be wholly without authority and the same as if no such law had ever been enacted.
“Where a county fails to accept and adopt a law which declares that the provisions of the act 'shall apply only to such counties as shall by resolution accept and adopt the same, the situation as far as that county is concerned is the same as if no such law had been enacted.” (Crawford County Comm’rs v. Radley et al., 134 Kan. 704, syl. ¶ 1, 8 P. 2d 386.)
The case of Despain v. Despain, 98 Kan. 707, 160 Pac. 219, cited by appellants, is not controlling, because it is stated in the syllabus that the deed was valid on its face.
The trial court in the journal entry finds that the county treasurer did not have authority at the September, 1912, tax sale to bid the land off for the county and adds that the court should take judicial notice of the date when the resolution was in fact adopted. We think the dates shown on the face of the deed were sufficient for the conclusion reached without resorting to judicial notice. The authorities cited by appellee in connection with a resort to judicial notice show it has sometimes been used for the purpose of upholding an instrument or deed.
The trial court held, and the appellee maintains, the deed is void upon its face for the further reason that the amount for which the lot was sold was less than “a sum of money equal to the cost of redemption,” in violation of the requirements of R. S. 79-2314, and because the cost of redemption as prescribed in R. S. 79-2401 includes “interest at the rate of fifteen per cent per annum on the amount of the purchase-money of sale.” The deed shows the amount for which the lot was sold on September 3,1912, for the taxes of 1911, the assignment of the certificate on March 31, 1917, the taxes for three of the five intervening years and the taxes for one subsequent year before issuance of deed, the total being exactly the amount for which the deed to this lot was issued, without adding anything for interest on the amount for which the lot was sold for the time intervening between the date of the sale and the date of the assignment of the certificate of sale, which was more than four and one-half years. The deed in two places recites that the total named is “the amount of taxes, penalties and charges,” but the amount of taxes, if it included any interest whatever on the sale price, would not agree with the total given in the deed but would exceed it by the entire amount of the interest on the sale price. This, we think, under the decision in this state is a violation of the provisions of the two statutes above cited, and when this illegality plainly appears on the face of the deed, it makes the deed void upon its face.
“A tax deed may be set aside even after it has been of record more than five years, where it shows upon its face that the certificate' was assigned by the county for considerably less than the amount then required for redemption. . . .” (Logsdon v. Hodges, 84 Kan. 456, syl., 114 Pac. 854.)
“A tax deed held void on its face because it showed that the interest of the county was assigned for less than the amount necessary to redeem." (Wilks v. DeHart, 78 Kan. 217, syl., 95 Pac. 836.)
“A tax deed which recites that at a tax sale certain lands were bid in by the county, and that subsequently the certificates and interest of the county in the land were assigned for certain specified sums, which were less than the cost of redemption and less than the officers were authorized to accept, is void on its face and passes no title to the holder.” (Douglass v. Lowell, 60 Kan. 239, syl. ¶ 1, 56 Pac. 13. See, also, Douglass v. Wilson, 31 Kan. 565, 3 Pac. 330; and Carson v. Weldon, 84 Kan. 442, 113 Pac. 1041.)
We find no error in the decision of the trial court holding the tax deed void upon its face.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action in replevin for the possession of an automobile.
It appears that at some time heretofore, date not shown, one B. W. Wade, a Sheridan county farmer, was the owner of a Ford sedan automobile. To secure a sum of borrowed money he and his wife, Frances Wade, mortgaged the automobile to the Hoxie State Bank.
Later the automobile came into the possession of Bert Vaughn under circumstances not clearly shown by the record. The bank brought replevin against Vaughn and obtained possession of the car under its precedent chattel mortgage. Still later, Wade, owner and mortgagor of the car, paid his debt to the bank, whereupon it was relinquished to him.
In this action, Vaughn testified that he had become the owner of the car, subject to plaintiff’s mortgage, by means of a sales contract, and that Wade had delivered the car to him to satisfy it. In the brief of his counsel the transaction whereby Vaughn obtained this claim to the automobile is explained thus:
“He [Wade] gave a mortgage or sale contract on the car to the appellee, Bert Vaughn. Sometime prior to the institution of this action, B. W. Wade turned the car over to Vaughn in satisfaction of his indebtedness under his contract or mortgage to him.”
As the issues were joined when the case was called for trial, the court ruled that the burden of proof was on defendant. Thereupon he asked and obtained leave to withdraw his “second supplemental and amended answer” and filed a general denial in lieu thereof. Plaintiff then presented its evidence. The testimony of the plaintiff’s cashier showed without dispute that at the time the replevin action'was begun the note and mortgage on the car were held by the bank and that the note was due and unpaid. In cross-examination, however, the cashier testified that after the action was begun Wade had satisfied the note in full, and had taken the car to Missouri.
The instrument under which defendant Vaughn claimed a right to the car or to its possession was brought into the record. It had the tenor of a sales contract, and was so designated. It recites that “the undersigned seller [Vaughn] hereby sells and the undersigned purchaser [Wade] . . . hereby purchase [s] subject to the terms and conditions hereinafter set forth . . . one Ford . . . sedan,” etc. This instrument is signed by B. W. Wade as purchaser, and by Bert Vaughn as seller.
On motion of defendant Vaughn, judgment against the bank for the return of the car to him or for its value, $250, was entered in his behalf. From this judgment the bank appeals.
While the cause between the bank and Vaughn was pending, ■ Frances Wade, wife of the owner and mortgagor of the automobile, obtained permission to intervene in the. action. She filed a pleading in which she alleged that she and her husband resided on a Sheridan county farm, that the automobile was a necessary implement of their farming business and used by them to make business trips to town and for carrying farm produce; that she and her husband did not purchase the automobile from Vaughn nor from the General Motors Acceptance Corporation which had been impleaded in this action; that she did not sign any contract of conditional sale or mortgage of this automobile; that she had never consented to its encumbrance in favor of Bert Vaughn; and that she claimed the automobile was exempt to herself and her family.
Affidavits of intervener and her husband were offered in evidence in her behalf. The trial court held that her right to the automobile could not be determined in this action, and from this ruling she appeals.
1. Considering first the matters of which the bank complains, it is contended that the trial court erred in permitting defendant Vaughn to withdraw his second amended and supplemental answer and to file a general denial in lieu thereof after the trial had begun. This pleading is not presented for our review, but as the trial court has a wide discretion over pleadings, not only prior to the trial but during its progress and after the parties have rested, and even after judgment in furtherance of justice (R. S. 60-759, Civ. Code, § 140), we cannot say that prejudicial error on this point is made to appear. (Barney v. Ferguson, 84 Kan. 587,114 Pac. 1055; Sylvester v. Riebolt, 100 Kan. 245, 164 Pac. 176; Burnham v. Burnham, 120 Kan. 90, 93, 242 Pac. 124.)
2. What appears to be a graver matter, however, is the error assigned on the trial court’s ruling on defendant’s motion for judgment on the evidence. While defendant testified that he was the owner of the car, it was clear that his claim of ownership and right of possession were based on the instrument executed by him and Wade and which was characterized as a conditional sales contract, and which defendant’s counsel would have us consider as a chattel mortgage. Technically considered as a conditional sales contract, the instrument of course was worthless. (55 C. J. 1235.) Vaughn could not sell to Wade, conditionally or otherwise, a chattel he not only did not own'but one which Wade actually did own subject to the bank’s chattel mortgage. Liberally construed, the instrument may have been intended by Wade and Vaughn to serve as a chattel mortgage; but enough facts and circumstances were in evidence, we think, even without Mrs. Wade’s intervening pleading and its supporting affidavits, to show that as a chattel mortgage it was a nullity because it was a necessary implement in the farming operations of Wade and wife, and she had not signed the instrument nor consented to its terms. There was also the evidence inherent in the joint execution of the first mortgage on the automobile by Wade and wife, and the facts elicited as to the manner in which Wade raised the money to satisfy that mortgage — by a sale of his farming chattels. Mayhap this evidence with the other attendant circumstances was not conclusive, but it seems to us it was sufficient to overcome any mere presumption that Vaughn’s possession of the automobile had such validity that the bank must respond to him in the sum of $250 for its failure to return it to him after its prior lien on the car was satisfied by the owner of the car.
3. Passing next to the matters involved in the intervener’s appeal, it has been held that an automobile used in its owner’s trade or business is exempt from seizure and forced sale in satisfaction of debts. (R. S. 60-3504; Dowd v. Heuson, 122 Kan. 278, 252 Pac. 260; Federal Agency Investment Co. v. Baker, 122 Kan. 460, 252 Pac. 262; Printz v. Shepard, 128 Kan. 210, 276 Pac. 811.) And chattel property exempt from process in invitum■ can only be hypothecated by joint consent of husband and wife where that relation exists. (R. S. 58-312; Alexander v. Logan, 65 Kan. 505, 70 Pac. 339; Searle v. Gregg, 67 Kan. 1, 72 Pac. 544; Jackman v. Lambertson, 71 Kan. 138, 80 Pac. 55; Reeves v. Bascue, 76 Kan. 333, 91 Pac. 77.) It is also elementary that in actions in replevin any person having an interest in chattels which are the subject of the action may be made a party and have his rights adjudicated. (R. S. 60-417, Civ. Code, §41; Ely v. Holloway, 95 Kan. 8, 147 Pac. 1128; Moffat v. Fouts, 99 Kan. 118, 121, 160 Pac. 1137; Miller v. Thayer, 96 Kan. 278, 150 Pac. 537.) Here the trial court did permit Mrs. Wade to intervene, and she made a prima facie case in support of her claim to the automobile. Having been permitted to intervene, she was every whit as much entitled to justice as either of the original parties; and if a presentation of her cause tended strongly to indicate that an erroneous conclusion had already been reached in respect to the issue between the bank and Vaughn, the court still had full power to correct it. (Stokes v. Seiss, 134 Kan. 784, 8 P. 2d 371.) Counsel for Vaughn make the point that no evidence was offered in support of the motion for a new trial. That might restrict the scope of this review if that motion had been predicated on the exclusion of oral testimony merely offered but not formally brought into the record. It is not good,, however, where the evidence was documentary and was before the trial court. This pertains particularly to the evidence inherent in the instrument designated as a conditional sales contract and interpreted as a chattel mortgage, and also to the affidavits of Wade and wife in support of Mrs. Wade’s pleading. In Leach v. Urschel, 112 Kan. 629, 636, 212 Pac. 111, it was said:
“Where the rejected evidence is documentary and is preserved the supreme court can examine it and its formal reoffering in support of the motion for a new trial may be ignored (Bank v. Seanier, 104 Kan. 7, 8, 178 Pac. 239; Bellport v. Harkins, 107 Kan. 454, 192 Pac. 730); also, where the testimony of a witness has been introduced or partially introduced and is then excluded, it is unnecessary to reproduce it on the hearing of the motion for a new trial, since the trial court knows what the evidence is and the supreme court can gather its substance. (Treiber v. McCormack, 90 Kan. 675, 136 Pac. 268.)”
See, also, City of McPherson v. Stucker, 122 Kan. 595, 600, 601, 256 Pac. 963, and citations.
It seems clear that the trial court’s ruling in respect to the intervener’s claim was erroneous. And in furtherance of justice the judgment should be reversed in toto and a new trial had on all the issues and between all the parties. (Beachy v. Jones, 108 Kan. 236, 245, syl. ¶ 7, 195 Pac. 184.) It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover for injuries sustained in an accident on a state highway, and is here on plaintiff’s appeal from an order sustaining a demurrer to his evidence.
Summarized, plaintiff’s petition alleged that the accident occurred on November 23, 1930, about 6:30 p. m., on state highway No. 6 about two miles south of Kimball, and at a point near a bridge or culvert; that the highway and the bridge or culvert were defective, in that the culvert was too narrow to permit safe passage, that it was not in the center of the road; that there were no proper guard rails and barriers at the bridge or culvert; that there was failure to provide any warning by signs and markers, and that the defendant had five days’ notice of the defect; that plaintiff, while a passenger in a car with F. C. Houdashelt, was passing on said road- “in the exercise of due care and was not then and there guilty of any contributory negligence on his part” and was injured by the car running into posts along the side of the highway, and that notice was given as required by statute and a copy thereof was attached to the petition. Defendant’s answer consisted of a general denial and an allegation that if plaintiff was injured, it was due to his own negligence and/or the negligence of F. C. Houdashelt.
Before the appellant could recover, the burden was upon him to show:
1. That the highway and culvert were a part of the state highway system and not within an incorporated city.
2. That the highway and culvert were defective.
3. That such defect was the proximate cause of the injury.
4. ■ That the state highway commission had five days’ notice of the defect in the manner and form as provided by statute.
5. That notice stating the time and place of the accident was given in time and manner as provided by statute.
In considering the matter of the correctness of the ruling, all evidence tending to prove plaintiff’s right to recover must be taken as true. At the trial it was stipulated that the highway in question is a part of the state highway system, and that written notice of the injury was given as provided by law. It is conceded that the place of the accident is not within an incorporated city. In summarizing the evidence, only those facts bearing on the correctness of the lower court’s ruling will be noticed.
The plaintiff testified he was a farmer seventy-one years old and had lived in the vicinity of Walnut for fifty years; that on November 23, 1930, he was a passenger in a motor vehicle on highway No. 6, and, as abstracted, in part as follows:
“Mrs. Spoonamore was keeping house for me. My son, Floyd, and I left home for Chanute on the 23d day of November, 1930. My son from Caney, Kansas, and his wife had been visiting with us on that day. Also, my daughter and her husband from north of town. My son, Floyd, and I left for Chanute for the purpose of taking my son, J. C. Houdashelt, and his wife to the train. We took Mrs. Spoonamore’s car for that purpose. We aimed to take my son’s car but it was a little out of shape and she told us to take her car. We went to Chanute and left my son and daughter-in-law at the depot. Then my son and I started back home. It was on that trip back home from Chanute that this accident occurred. 1 was sitting on the right-hand side of the car and my son was driving. ... I don’t suppose there was anything only the darkness to obstruct my view of the posts along the side of the bridge as we approached that bridge from the north. We had lights on. I suppose they were good. I saw the light of a car coming from the south as we approached this bridge or culvert. I have no way of telling how far away it was when I first saw the light of that car. It was probably a hundred yards, I could see the lights quite a ways. I don’t know whether I could see the lights more than three hundred feet. I saw this car coming before it got to the bridge and I saw it before we got there, too. We kept right on going toward the bridge. I don’t know whether this car went over the culvert ahead of us or not, I couldn’t say. To the best of my knowledge they both struck the culvert at about the same time. I didn’t know what our car struck after it hit. I could see until we hit that post. I did not see those posts along the north side of the bridge and along the west side of the road that night. I was not looking for them. I was not paying any attention, I was not driving the car. I was not looking for any posts. We went over that road to Chanute. I can’t say whether the posts were painted or not, I don’t know, I paid no attention. . . . As we approached this bridge or culvert I was looking at the cars that were coming from the south. I was seated on the right-hand side or west side of the car. It was dark and I couldn’t see any posts that might have been located on the west side of the road. I wasn’t particularly looking for any posts, my sight was directed on those cars. I wouldn’t say I was looking for warning signs because I was looking at those cars.”
He also testified with respect to his injuries.
E. C. Houdashelt testified he was the plaintiff’s son and was driving the car and, quoting from the abstract—
“The highway was surfaced with chat. In my judgment the traveled portion of the highway was probably twenty-four feet wide, something like that. At the time of the accident we were driving south. I was traveling on the right side of the west side of the road. The accident occurred near or at a bridge or culvert located on this highwas'-. I was not.familiar with this highway at that time. I had not passed over this highway for probably six months prior to November 23, 1930. . . . There was other traffic on the highway just prior to this accident, other automobiles. They were going north. There were at least two. I saw their lights, they were approaching us from the south. They were going at a pretty good lick. I was keeping a lookout down the road ahead of me in the direction I was traveling as I approached these cars. We hit a post there at the bridge. It upset the car, bottom side up. . . . The post that we ran into was setting to one side of the bridge. It was setting on the north side of the bridge and on the 'west side of the highway. I saw the post before I hit it. When I first saw the post I was within a foot or two of it, something like that. At the time I first saw the post we were just meeting one car and the other was up the road toward the south of this bridge. When I saw this post I turned my car or tried to turn it up into the road to the left. The post struck just inside of the right front fender and outside of the front headlight on the right side. As I met this car that passed there at the time I had this accident I was traveling around fifteen miles an hour. . . . The lights on the car I was driving were in good condition. Darkness prevented me from seeing these posts that were on the north side of this bridge and on the west side of the highway. That is not the only thing, I was watching the other cars. The lights of the other cars did not blind me. I looked for posts on the west side of the road as we approached the bridge. I did not see them on account of the darkness and I was also watching this other car to keep from colliding with it. I did see the post just before we hit. I didn’t have time to stop. I didn’t stop when I found I could not see' what was on the west side of the highway as we were going south because I knew I was in the road. I couldn’t see what was ahead of me away down the road. I couldn’t say just how far my lights lighted the road ahead of me. Probably twenty to twenty-five feet ahead of me. I have an idea I could see farther than that ahead of me down the road, maybe thirty feet. I don’t know whether I could see beyond thirty feet or not. Prom my best knowledge there were three posts north of the bridge and on the west side of the highway. I‘hit two of these posts. I think I hit the second one from the outside post first and then the next one to it, that would be the one closest to the bridge. When I hit these posts my car skidded across the bridge and turned over. . . . The brakes on this car that I was using that afternoon were all right.”
Eben Klaus testified that he had been patrolman for this particular highway since September 1, 1926, first for Neosho county and after April 1, 1929, for the state highway commission and, quoting from the abstract:
“I am familiar with and was acquainted with the culvert or bridge where the accident in question happened. Prior to the 23d day of November, 1930, I passed over this particular bridge or culvert or over this highway in the discharge of my duties as patrolman every Monday, Wednesday and Friday. ... I was familiar with that culvert. I knew the condition the culvert was in. It was a fourteen-foot culvert. The center of the culvert was not in the center of the highway. The center of the culvert was east of the center of the road. If a person was coming from the north and traveling south on the right-hand side of the road it would be necessary to turn some to the east in order to cross over the culvert. If a person were coming from the south on this highway and traveling over on the right-hand side of the road going north it was not necessary for them to turn in order to go over this culvert. They would just keep on the main-traveled portion of the highway. There were posts there at this culvert on the west side of the road and on the north side of the culvert. There were six on each end of the bridge. There were three posts on each side of the culvert on the west side of the road and on the east side of the road there were three on each side of the culvert. They were set out at an angle across the road of about thirty degrees, something like that, extending from the northwest corner of the bridge. I judge they were about three feet apart. They were just plain posts. They had been painted. I couldn’t say how long it had been before November 23, 1930, that they had been painted, but I know the state highway men were around there once in a while painting those posts. As a patrolman I was familiar with that culvert. . . . These posts on the north side of the bridge and on the west side of the highway were painted aluminum. They had aluminum paint on them on the 23rd day of November, 1930. . . . Prior to November 23, 1930, I never had a personal knowledge of the posts which were north of the bridge and on the west side of the highway not being properly placed. . . . I never measured this road, but it is about a twenty-seven-foot road. This culvert was fourteen feet wide east and west. About nine feet of this bridge was located east of the center of the highway at the time of the accident. . . . That would leave five feet west of the center of the road on November 23, 1930, when this accident occurred.”
Alvin Brown testified he was a farmer living near and that there were no guard rails or bannisters upon the approaches of the culvert on November 23, .1930, except the posts, and no “narrow bridge” or “slow” signs, and that about two weeks after the accident signs were placed.
Henry Hazen testified he was towmship treasurer and familiar with the culvert in question. His testimony, similar to that of other witnesses in many particulars, is that the culvert is probably fourteen feet wide and about nine feet of it was east of the center of the road. The posts were painted white aluminum and were about two and one-half feet above the ground.
No attempt has been made to restate the testimony as to plaintiff’s injuries, nor as to his mode of living, earning, etc., nor to show in full each witness’ testimony where it is repetition of another’s.
The first matter for consideration is whether the evidence showed any defect in the highway. Appellant directs our attention to R. S. 68-1109 providing for the width of bridges and culverts, but it should be noted that the section applies to bridges and culverts constructed under the provisions of “this act,” which is chapter 80 of the Laws of 1917, as amended, and now appearing as R. S. 68-1101 et seq. There is neither pleading nor proof that the culvert was built under the provisions of this act. Our attention is also directed to R. S. 68-1110 making it the duty of the county to place and maintain good, solid, substantial guard rails not less than three feet high on each side of all bridges and culverts. Assuming that the section puts such a duty on the state highway commission for bridges and culverts under its supervision, we are first met with the proposition of what the statute means. If it refers to guard rails on the bridge or culvert itself, then it is of no consequence here, for the lack thereof — if there was a lack — did not in any manner contribute to plaintiff’s injuries. If it refers to guard rails leading from the sides of the highway up to the abutments or ends of the bridge or culvert, then the evidence clearly shows that on the west side of the road and to the north of the culvert there were three substantial posts, painted white and placed for the very evident purpose of warning the traveler on the highway and preventing him from going into the ditch over which the culvert stood. It is claimed, however, that the highway was defective in that the culvert was only fourteen feet wide and was so placed in the highway that nine feet of it was east of the center of the road and five feet of it was west of the center, and appellant cites Wagner v. Clay County Comm’rs, 128 Kan. 127, 276 Pac. 74, in support. In that case, however, the testimony showed that just prior to the accident a part of the dirt approach had been washed out and filled in with soft dirt, that it was dusk in the evening when the accident occurred and the approach could not be seen; that the roadway appeared to be solid, and that the car ran into the soft dirt and into the ditch, and it was held that, on demurrer, this court could not say sufficient facts had not been proved.
In Burgess v. Center Township, 115 Kan. 346, 223 Pac. 475, plaintiff was driving along a roadway crossed by a small stream bridged with planks sixteen feet long, the bridge was ten feet wide and set somewhat obliquely to the road, and he contended that the bridge and highway were defective, and the township board had notice. In disposing of the contention this court said:
“Plaintiff also contends that 'the testimony shows clearly that the bridge was constructed as it stood at the time of the trial; that it stood obliquely across the roadway,’ and that it was established and admitted that the trustees were fully apprised of its situation. Granted. Many bridges are purposely built to stand obliquely to the general direction of a public road. That is a question or problem of good engineering, and would involve consideration of the contour of the land, the course of the stream bed, the approaches, and the like. There was no evidence that such construction was insufficient or improper, or that the township trustees knew that a bridge so constructed and situated was or would be dangerous to public travel. (McFarland v. Emporia Twp., 59 Kan. 568, 53 Pac. 864.)” (p. 349.)
In Watson v. Parker Township, 113 Kan. 130, 135, 213 Pac. 1051, it was said a defective highway is simply a public road which is dangerous to the traveling public.
In Collins v. State Highway Comm., 134 Kan. 278, 283, 5 P. 2d 1106, it was said that there is no legal foot-rule by which to measure conditions generally and determine with precision whether a condition constitutes a defect, that some conditions might be so patently dangerous that a verdict denying defect would be promptly set aside, and other conditions might be so trifling that a verdict of defect would be promptly set aside.
In Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946, it was held that a hole in the highway was a defect and—
“A condition of a highway which renders it dangerous for the public . traveling over it is certainly a defect.” (p.813.)
In Gorges v. State Highway Comm., 135 Kan. 371, 372, 10 P. 2d 834, appears the following:
“The liability of the state for injuries growing out of defective highways is statutory. It is not founded on the law of negligence but is created wholly by legislative enactment. (Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762.) ... It has been held that under certain circumstances whether a road is defective is a question of fact to be determined by the jury (Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051; Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106), but whether an alleged defect comes within the purview of the statute, creating liability, is a question of law to be determined by the court.”
The only defects alleged are that the culvert is narrow, does not sit in the center of the road and is not provided with “proper guard rails,” and the testimony, which it is not necessary to reiterate, shows no more. Under the decisions, we fail to see wherein the highway is defective, and we are impelled to this conclusion not only from the showing in the evidence as to the construction and condition of the highway and the culvert, but also by the fact that plaintiff’s injuries were caused by the car colliding with the very guards the absence of which he alleges constituted a defect.
■ Where there is no defect which contributes to the injuries complained of, there is no situation of which the state highway commission must take notice.
And it might be remarked that if there were a defect, it might well be held under the evidence it was not the proximate cause of the injury.
The plaintiff’s evidence showed that their car was driven along the highway and into the posts; that the lights of the car lighted the road from 25 to 30 feet ahead; that the posts were painted white or aluminum, that the posts were properly placed to warn travelers on the highway, and the only reason they did not see them was that they were looking at approaching cars instead of the highway down which they were proceeding. While the rule is that the burden is on the defendant to prove contributory negligence, it will not be interpreted to mean that if plaintiff’s own testimony shows him guilty of such negligence as precludes a recovery, the defendant cannot take advantage of it. The testimony showed plaintiff and his son were on a joint mission (Howard v. Zimmerman, 120 Kan. 77, 242 Pac. 131), and it likewise showed they were in equal position to and were both looking forward as the car was proceeding immediately before the accident, and it was their duty to so operate the car that it could be stopped within range of their vision. See Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593, and Tuer v. Wayland, 129 Kan. 458, 283 Pac. 661, and cases cited therein.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
Our attention has been called on petition for rehearing in the case of Farmers Union Jobbing Ass’n v. Sullivan, decided March. 11, 1933, and reported in 137 Kan. 196, 19' P. 2d 476, to two items of $50 each which, under the facts shown by the record, do not come within the rule laid down in that decision, being two items for rent due and payable by the tenants to the defendant owner on November 1; 1931, which were reached and covered by the service of garnishment summons about that date, and an answer was made by one of these tenants on November 3, 1931, and by the other on November 5, 1931, admitting that they then owed the defendant $50 each for rent due November 1, 1931.
The mortgage held by the, intervener contained an assignment of the rents to the mortgagee, but no demand on the tenants had been made by the intervening mortgagee for the possession of the rents until November 23, 1931, and it was held in the decision rendered that the lien of the mortgagee was prior to a lien or claim under a garnishment process from the date of the demand, when immediately followed by consent or by judicial proceeding to obtain possession of the rents thus assigned.
Under this ruling the lien of the garnishment summons would be prior to that of the intervening mortgagee for all rents thus garnisheed before the date of the demand, November 23, 1931. The plaintiff is therefore entitled to collect these two items of $50 each reached by his garnishment before the demand was made. The decision heretofore rendered is modified to that extent but no further, as the next two items were covered by garnishment after the date of the demand.
Appellee suggests this exception now claimed by appellant was not in the appeal nor involved in the original case. It was mentioned in the brief of the appellant, and the action in the lower court included every item covered by the garnishment process and the subsequent stipulation.
The former decision is adhered to, except that it is modified to the extent of the two items of $50 each, which should be paid to the plaintiff under the garnishment process. | [
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The opinion of the court was delivered by
Burch, J.:
In a petition for rehearing, defendant asserts the decision of this court heretofore- rendered transgresses rights guaranteed to defendant by provisions of the constitution of the United States. What.this court did was to review a judgment of the district court of Shawnee county. The judgment of the district court was based on an interpretation of the statutes of this state. The district court had no constitutional question before it for consideration, and decided no such question. The appeal brought no constitutional question to this court for consideration. This court has not considered or decided any constitutional question, and a statement in the petition for rehearing that this court raised a constitutional question for the first time “in its opinion” has no fact foundation upon which to rest.
The petition for rehearing, except the portions which relate or supposedly relate to constitutional questions, has been duly considered. Upon such consideration, the judgment of this court affirming the judgment of the district court is adhered to, | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the defendant bank from the order of the trial court overruling its demurrer to the plaintiffs’ petition, in their action against the bank to recover |4,000 which they claim to have paid the bank without consideration and under duress.
The petition alleges that plaintiffs are husband and wife and that their son-in-law had been collection teller for the defendant bank and that the defendant, by and through its president and assistant cashier, orally caused to be represented through their son-in-law to them “that their said son-in-law was charged with collecting accounts in the aggregate sum of approximately four thousand ($4,-000) dollars, which he had failed to turn into the bank and had appropriated to his own use, and that if the plaintiffs would pay or secure to said defendant the said sum of four thousand ($4,000) dollars, that said defendant would accept same in full settlement of the claim against said son-in-law, and that the payment and security of same would protect said son-in-law from criminal prosecution.” The petition further alleges that the plaintiffs, believing and relying on these representations, secured and paid said sum solely to protect their son-in-law; that their free will was overcome and constrained by such representations; that they made the payment under duress and they would not have made it if such statements had not been made and their minds been overcome and constrained thereby.
Both parties recognize the fact that the question of want of consideration is incident to and logically a part of the question of duress, so that the duress feature is the sole and only question here involved. Does the petition sufficiently plead duress? While duress is recognized as. being established in many cases by the effect the representations and statements, have upon the mind and will of the party pleading it, as was said in the case of Williamson v. Ackerman, 77 Kan. 502, 94 Pac. 807, “Under the modern theory duress is to be tested, not by the nature of the acts or threats, but rather by the state of mind of the victim induced by such acts and threats” (p. 505), yet in the case at bar the demurrer is not particularly leveled at the allegations as to the state of mind of the plaintiffs, but to the sufficiency of the allegations of acts and threats of the officers of the defendant bank. The only acts and threats, statements or representations the officers of the bank are charged in the petition with) having made were that the son-in-law was charged with collecting approximately $4,000' which he had failed to turn into the bank and had appropriated to his own use, “and that if the plaintiffs would pay or secure to said defendant the said sum of four thousand ($4,000) dollars, that said defendant would accept same in full settlement of the claim against said son-in-law, and that, the payment and security of same would protect said son-in-law from criminal prosecution.” Does this contain the threat necessary to constitute duress? It contains no threat whatever, unless the negative is to be inferred from the last clause — that if the payment and security were not made and furnished the son-in-law would be prosecuted criminally. Inferences from facts pleaded are not generally substitutes for necessary allegations.
“. . . it is not sufficient that a fact may be inferable from the facts ! pleaded, where it is not necessarily implied. And it has indeed been said that under the codes a fact must be pleaded unless the law raises a conclusive presumption of its existence from the facts stated. In other words, the averment of a fact necessary to constitute a cause of action or defense cannot ordinarily be obviated by the averment of a fact which raises only a prima jade or rebuttable presumption of the fact relied on.” (49 O. J. 39.)
“As a general rule, all of the facts which are ingredients in the cause of action must be specifically alleged in the petition, even though upon the trial proof of certain of those facts will raise a presumption and be therefore prima jade evidence of the existence of other facts.” (Draper v. Cowles, 27 Kan. 484, 488.)
The last clause above quoted from the petition is what a good friend might very naturally say in observing, with gratitude, that this payment will protect him from criminal prosecution. Appellees say this meant volumes to them as innocent people. It could very properly be so as a protection from the possibility of prosecution, or it might be what people generally might regard as a protection from prosecution, but that is very different from the threat by the defendant or its officers that it would prosecute if the money was not paid or security furnished. It might even be that the officers of the bank were anxious that the former teller avoid prosecution, as some of the evidence in the recent case of Jones v. Prickett, 135 Kan. 640, 11 P. 2d 1008, showed to have been the wish of the bank officer in that case.
It is stated in 9 R. C. L. that—
“A case of duress by threats is sufficiently stated by alleging the circumstances, a threat of prosecution and the fear of its execution . . .” (p. 730.)
“The question in every" such case is whether his liability to imprisonment was used against him, by way of a threat, to force a settlement.” (p. 720.)
In the case of Heaton v. Bank, 59 Kan. 281, 52 Pac. 876, it was said:
“A wife is not bound by a contract induced solely by the threats of parties that in case she fails to enter into the contract they will cause the arrest and imprisonment of her husband.” (Syl. ¶ 1.)
In the case of American Nat’l Bank v. Lipe, 123 Kan. 674, 256 Pac. 967, which was an action by a bank upon a note and mortgage given by the mother of a boy who had gotten into financial difficulties and she had signed a series of notes, it was said:
. . Unless she made the first of such contracts the bank would prosecute her son for actual or pretended financial irregularities and cause him to be sent to the penitentiary, considered, and held sufficient to support the verdict and judgment for defendants.” (Syl. ft 1.)
In the case of Western Paving Co. v. Sifers, 126 Kan. 460, 268 Pac. 860, the allegations for other reasons were held not to constitute a duress, although the threat, as stated by the defendant, was “that if I wasn’t willing to give him cash in exchange for this order I had given him that he would see the prosecuting attorney and cause me some trouble.” (p. 463.)
In the case of Williamson v. Ackerman, 77 Kan. 502, 94 Pac. 807, the father was coerced into signing a mortgage to secure the defalcation of his son “by threats of arrest and prosecution for embezzlement if such security is not given.” In the case of Riney v. Doll, 116 Kan. 26, 225 Pac. 1059, threats were alternative, those of prosecution, and, if ineffectual, to be followed with a beating. In each of the cases, Smith v. Bank, 90 Kan. 299, 133 Pac. 428, and Bank v. Bay, 90 Kan. 506, 135 Pac. 584, the basis of the dux'ess was definite and specific threats.
From these cases cited by parties in this connection there is not one instance of duress that does not have a specific and definite threat, and we cannot but conclude that the allegations of the petition in this case are not sufficient to charge duress. It requires a threat, and a mere suggestion of payment affording a protection from criminal prosecution is not sufficient.
Duress is defined in 13 C. J. 396, 397, as follows:
“Duress is that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind of a person of ordinary firmness. ... Of course the agreement must have been entered into because of the imprisonment, or of fear of the threatened injury or imprisonment; otherwise there is no duress.”
We think the demurrer to the petition should have been sustained.
The judgment is reversed and the cause is remanded with directions to sustain the demurrer. | [
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The opinion of the court was delivered by
Burch, J.:
The question in this case is whether a dealer who sells to customers auto vehicle tires, tubes- and rim, and installs them gratis, is entitled to a lien on the vehicle for the price of the articles.
The question arose between intervening creditors in an action by Wallace T. Rouse against the Paramount Transit Company, in which a receiver was appointed for the transit company. The vehicle involved is a three and a half ton Dodge truck with six wheels. The C. I. T. Corporation claimed possession of the truck under a conditional sales contract having the effect, so far as this litigation is concerned, of a chattel mortgage. The Martin-Jackson Tire and Supply Corporation claimed possession of the truck by virtue of a lien duly perfected under the statute providing for a lien for services on personal property. The principal items were for tires and tubes, and for a rim. By order of court, the truck was placed in storage to await final determination of the case. After trial by the court, judgment was rendered awarding the Martin-Jackson Company a first lien for $598.26, awarding the C. I. T. Corporation a second lien for $1,632, and providing for sale of the truck and application of proceeds. The C. I. T. Corporation appeals.
The Martin-Jackson Company has an establishment consisting of a store in which it keeps a stock of merchandise comprising automobile tires, tubes, rims and other automobile supplies, a repair shop, and a parking place for vehicles to be serviced. The truck in question was used by the Paramount Transit Company for transportation of merchandise between Wichita and Kansas City, Mo. The truck made a trip to Kansas City every night and returned to Wichita the following day. On its return, it would be parked in the Martin-Jackson Company yard and would be serviced as needed — air in the tires, flat tires repaired, new tires supplied, etc.
Automobile tires and tubes are distinct articles of merchandise sold by manufacturers to dealers who distribute them to auto vehicle users. They may not as yet be purchased at drug stores, but they may be purchased of dealers in general merchandise. Certain dealers specialize in the sale of tires and tubes. The articles are sold at list prices based on manufacturer’s prices, and the seller installs the tube or tire without charge for the labor. Rims are not often kept in stocks of general merchandise. Small dealers in tires and tubes seldom keep them in stock, but other dealers do. They are sold at list prices, in this instance fixed by a wheel and rim association, just as tubes and tires are sold, and a purchase of a rim is a purchase of the article mounted. As in other commercial transactions, large buyers and some others are allowed a discount from list prices. A transportation company having a fleet of buses was a large buyer from the Martin-Jackson Company, but did its own mounting. It was given a special'discount; but the Martin-Jackson Company made no charge for the labor involved- in mounting the merchandise it sold.
The statute reads as follows:
“A first and prior lien is hereby created in favor of any blacksmith, horseshoer, wagon maker, keeper of a garage, or any other person, upon any goods, chattels, horses, mules, wagons, buggies, automobiles, or other vehicles, and farm implements of whatsoever kind, which shall come into his or their possession for the purpose of having work done on said property, or repairs or improvements thereon, and said lien shall amount to the full amount and reasonable value of the services performed, and shall include the reasonable value of all material used in the performance of such services. Such lien shall be valid as long as the person claiming the same retains possession of said property, and the claimant of said lien may retain the same after parting with the possession of said property by filing within thirty days in the office of the register of deeds, under oath, a statement of the items of the account and a description of the property on which the lien is claimed, with the name of the owner thereof, in the county where the work was performed and in the county of the residence of the owner, if such shall be known to the claimant. [Revised, 1923; old sections, L. 1872, ch. 142, §1; L. 1903, ch. 383, § 1; L. 1913, ch. 218, § 2; L. 1917, ch. 232, § 1.]” (R. S. 58-201.)
As indicated, this section is a revision. While it is based on previous statutes relating to artisan’s liens, it is different from any of them, is different from the common law, and takes its place among other statutory lien statutes. Because special privileges are conferred, such statutes are strictly construed in determining to whom and for what a lien is given. (Bridgeport Machine Co. v. McKnab, 136 Kan. 781, 786, 18 P. 2d 186.)
The lien is for the amount and value of services performed, including value of material used in performing the service. The service is primary. The material used to effectuate the service is subordinate and collateral, and this court has so held.
“By the language of the statute and from its analogy to similar laws it is obvious that the labor upon the article intrusted to the artisan is the principal thing, the material furnished being incidental.” (Clark v. Davis, 123 Kan. 99, 102, 254 Pac. 399.)
Among the items for which a lien was claimed were the following:
“1 900/20 truck 10-ply casing and application........................ $71.94
1 900/20 truck balloon casing, tube and application.................. 81.86
2 975/20 truck balloons and application, 2 No. 60 tubes and application, 204.52
1 975/20 truck 12-ply casing and application, 2 No. 60 heavy mold tubes and application........................................... 102.26
1 975/20 truck balloon casing and application....................... 78.61”
Some labor was involved in mounting tires on this big truck. The wheel might be an inner wheel of a rear pair, and to mount a tire might take two hours’ time. However, the price of a tire was considerable, and each transaction was precisely the same as if the vehicle had been an Austin. A. E. Jackson testified on behalf of his company as follows:
“Q. What is your custom with reference to the sale of truck tires in this community? A. We sell these tires installed.”
The result is, labor was not an element of value in the transactions, much less the necessary primary element.
Tires and tubes are not “material” incidentally used in the performance of labor. To illustrate, one item for which a lien was claimed was “1 900/20 section job, $12.” There was a hole in a tire, but the tire was not unfit for service and it was repaired. Some material was used, but the charge was chiefly for labor. Other charges were for tube repairs, which we all know about. The mechanic puts a patch on a tube. The charge is chiefly for labor but" includes a bit of material used in performance of the labor. Another charge was for casing repair, and another was for a boot repair of a casing, the price of the boot being $2.50. All these were lienable items, but the statute may not be stretched to embrace tires, tubes and rims sold out of stock, and this would be true if a reasonable charge were made for installation. (Clark v. Davis, 123 Kan. 99, 254 Pac. 399.) With respect to those articles, the merchant sells on the personal credit of the buyer.
The case of Clark v. Davis involved replacements and additions to a car already fitted with standard equipment. It was held there was no lien. The decision was based on the ground the articles were not “improvements” within the meaning of the statute. In the opinion it was said that if a worn tire had been replaced by a new one a different question would have been involved, which is true. Putting on a new tire in place of an old one would improve the car, and we have in this case the question left open in Clark v. Davis.
Granting a car has been improved, who may have a lien, a merchant or a mechanic? And for what may claimant have a lien, an article of merchandise sold without labor being a factor of the transaction, or labor performed plus value of material used to accomplish the purpose of the labor? The answers have been indicated.
The Martin-Jackson Company cites the case of Hockaday Auto Supply Co. v. Huff, 121 Kan. 113, 245 Pac. 1013. The court has before it the brief of the appellant in that case. No question was raised except constitutionality of the lien statute, and that was the only question decided by the court. Some cases are cited from other states construing the statutes of those states. It is not necessary to extend this opinion by presenting the statutes and reviewing the decisions. The court has no doubt respecting proper interpretation of the statute of this state.
The judgment of the district court is modified by deducting from the amount of the lien awarded the Martin-Jackson Company the price of the tires, tubes and rim installed on the truck. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for injuries sustained by plaintiff, and for damages to his automobile in a collision with defendant’s tank truck.
According to plaintiff’s evidence the accident occurred at an intersection of two streets in Gas City, a small town in Allen county. One of these streets, which runs east and west, is known as U. S. highway No. 54. The post office is situated on the south side of this street. McRae street intersects No. 54 at right angles thereabouts. About five o’clock p. m., on June 24, 1931, plaintiff parked his car in front of the post office while he called for his mail. Then he got into his car, started his motor, looked west and saw that the way was clear. Then he proceeded northwest across highway 54 towards McRae street. While thus engaged defendant came from the west driving his tank truck at high speed. He saw plaintiff and his car halfway across the road and apparently hesitating as if about to stop, so he decided to pass to the east on the north side of No. 54, but when it became apparent to him that plaintiff did not intend to stop, defendant endeavored to turn his truck northward into McRae street, but his speed and momentum were so great that his truck turned over, striking and crushing plaintiff’s car and severely injuring him.
Plaintiff’s petition charged negligence on the part of defendant by operating his truck at excessive and dangerous speed, with reckless disregard of the safety of other users of the highway, and in violation of the city speed ordinance.
Defendant pleaded a general denial and contributory negligence.
The jury returned a general verdict for plaintiff for $2,800 and answered certain special questions:
“1. Did the plaintiff, Bert Damitz, see defendant’s truck approaching from the west before plaintiff drove onto the concrete slab? 'A. No.
“2. Did plaintiff, at or immediately before driving onto concrete slab, look to the west for approaching cars on highway No. 54? A. Yes.
“3. For how great a distance can a person sitting in a car at the point where plaintiff’s car was parked just prior to his driving onto the concrete slab, see a vehicle approaching from the west on highway No. 54? A. 576 and Vz feet.
“4. What, if anything, prevented plaintiff from having a full and unobstructed view of defendant’s truck as it approached from the west? A. Nothing.
“5. Did plaintiff stop or slow down his car momentarily while he was crossing the concrete slab? A. Yes. Slowed down momentarily.
“6. If you answer question No. 5 ‘Yes’ or in the affirmative, then state:
“(a) The distance between defendant’s truck and plaintiff’s car at the time plaintiff stopped or slowed down. A. 80 to 100 feet.
“(b) The rate of speed defendant’s truck was traveling at the time the- plaintiff stopped or slowed down. A. 30 to 35 miles per hour.
“7. If you find the defendant guilty of negligence because of injury and damage to plaintiff, state the acts or act of negligence of which the defendant was guilty. A. Excessive speed.”
Motions for judgment and for a new trial were overruled, and judgment was entered for plaintiff.
Defendant specifies various errors, in the first of which he makes the contention that plaintiff’s testimony and the special findings show that plaintiff was guilty of contributory negligence. Accord ing to that evidence and the findings, the distance towards the west in which an approaching vehicle could be seen was 576.5 feet. Beyond that distance the highway disappeared over the brow of a ■ hill. Defendant stresses the jury’s finding 4 that there was nothing to prevent plaintiff from seeing defendant’s truck as it approached from the west. But that finding must be read in conjunction with the other findings. From these it is found that plaintiff did look to the west immediately before he started to cross the highway and that he did not see plaintiff’s truck at that time. The fair inference from those findings is that when he did look defendant’s truck had not yet appeared at the brow of the hill. Seeing nothing coming from the west, there was no apparent urgency for haste in crossing the highway, and, according to the evidence to which the jury gave credence, defendant must have been driving at a very high and unreasonable rate of speed. Indeed, he was still speeding pell mell toward the center of that little town at 30 to 35 miles per hour when only 80 to 100 feet away, when he first saw plaintiff in the middle of the street. One witness testified:
“I observed tracks on the pavement. The pavement was marked where the rubber had burned from the tires where he [defendant] skidded his wheels from putting on his brakes. I stepped that distance, thirty-six steps from where the brakes were applied to the back of the truck. I generally step three feet in a step. It would be about 120 feet.”
Defendant would attach much significance to the fact that plaintiff slowed down momentarily while crossing the highway. It does not appear why that fact should convict plaintiff of contributory negligence. Probably he was changing gears, at which instant many cars “slow down momentarily." He may have sensed the approach of danger and hesitated as to the best way to meet it, by halting or going ahead. Plaintiff himself cannot explain this incident. He knows nothing about it. His testimony reads :
“My car was headed just a little northwest and I drove across the slab and just as'my front wheels went up on the sidewalk I saw the radiator and the head-end of a car and that is all I can tell you. ... It was then I discovered this car coming right at me. I just saw the radiator and hood. I can’t tell you what happened then. They carried me to the hospital and I waked up the next morning and that is all I can tell you.”
Without rehearsing the contents of the record at greater length it seems clear that neither the jury’s special findings nor the evidence established plaintiff’s contributory negligence as a matter of law. (Brunson v. Shell Petroleum Crop., 137 Kan. 133, 19 P. 2d 455.)
Error is next assigned on instruction No. 12, in which the trial court told the jury, among other matters, that a motorist about to cross highway 54, which was a paved street bearing much traffic, was required to use greater caution than he would have to exercise in crossing a dirt street like McRae which had but relatively little traffic. Included in this instruction was the following:
“However, in arriving at the question upon whom rested the greater burden of caution, you should not speculate or arrive at your conclusions by comparison, but take the situation and the condition and the manner in which the collision occurred and what brought it about, solely and only from the evidence as your guide.”
Defendant contends that the quoted part of this instruction was erroneous in that it required the jury to determine upon which party rested the greater burden of caution, and that “the doctrine of comparative negligence is not recognized in this state.” We think this criticism of the instruction is rather technical, but it certainly was not prejudicial to defendant. Plaintiff was the one who was crossing the paved road. According to this instruction the greater duty of caution rested on him, not on the defendant, who was proceeding along the paved highway. The error assigned on this instruction cannot be sustained.
A third error is based on the trial court’s refusal to give an instruction formulated by defendant to define an accident in which no one is at fault. There was no such issue in this lawsuit; consequently it was not erroneous to ignore it.
Error is also predicated on the rejection of a requested instruction which read:
“You are instructed that it is the duty of the driver of a motor vehicle, before entering or driving into or across a public highway, to look up and down said highway, in each direction, to ascertain whether or not he can safely enter and cross said highway without a collision with other vehicles, and you are instructed that if you find from the evidence in this case that plaintiff, Bert Damitz, did not so look before entering and driving onto the highway, and that his failure to so look contributed to produce the injury, then he would be guilty of contributory negligence, and he cannot recover therein.”
This was a fair statement of pertinent law, but we think it was sufficiently covered by the instructions which the court did give, particularly in the 8th, 9th and 11th, too long for reproduction here.
Yet another error is urged on the trial court’s refusal to submit a special question to the jury which read:
“Q. 8.- Were the injuries and damage suffered by the plaintiff the result of an accident, as defined to you in the court’s instructions?”
We think the fact sought to be elicited by this question was sufficiently developed by the jury in their answer to special question No. 7, quoted above, and in their general verdict.
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